Construction, Forestry and Maritime Employees Union

[2024] FWCA 1480

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/1180)

WORKSTAFF PTY LTD AND CONCORP TRADING PTY LTD T/AS PRECISION SHOTCRETE AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONCRETE PUMPING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 22 APRIL 2024

Application for approval of the WORKSTAFF PTY LTD and CONCORP TRADING PTY LTD T/As PRECISION SHOTCRETE and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Pumping Enterprise Agreement 2020-2023.

An application has been made for approval of an enterprise agreement known as the WORKSTAFF PTY LTD and CONCORP TRADING PTY LTD T/As PRECISION SHOTCRETE and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Pumping Enterprise Agreement 2020-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Construction, Forestry and Maritime Employees Union. The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 18 March 2024 and the Agreement was made on 9 April 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Applicant has raised that the Agreement contains a typographical error and the word ‘trading’ appears as ‘tradining’ on the title page, as well as in clauses 1.1 and 2.1 of the Agreement. The Applicant has sought that the Commission exercise its discretion pursuant to s.218A of the Act to amend an obvious error, defect or irregularity. I am satisfied that the typographical error is an obvious error, defect or irregularity and I will amend the Agreement accordingly pursuant to s. 218A of the Act.

The Construction, Forestry and Maritime Employees Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 April 2024. The nominal expiry date of the Agreement is 30 April 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application for approval of an enterprise agreement between Workstaff Pty Ltd and Concorp Trading Pty Ltd trading as Precision Shotcrete and the Construction, Forestry and Maritime Employees Union (Victorian Construction and General Division) Subcontractors Concrete Pumping Enterprise Agreement 2020-2023. The application was brought under the Fair Work Act 2009, seeking the Commission's approval to formalise the terms and conditions of employment between the parties involved.

The primary legal issue before the Commission was whether the proposed agreement met the requirements of the Fair Work Act, specifically whether it was a "better off overall test" (BOOT) agreement. This required the Commission to assess if the agreement would provide employees with a total package of pay and conditions that was at least as good as the relevant award or safety net, and whether it met the "genuine agreement" criteria, ensuring it was not made under duress or as a result of a misleading or deceptive conduct.

In its decision, the Commission found that the agreement satisfied the BOOT, as it provided employees with a total package of pay and conditions that was at least as good as the relevant award or safety net. The Commission also found that the agreement was genuine, as it was not made under duress or as a result of misleading or deceptive conduct. The Commission approved the agreement, stating that it was in the best interests of the employees and that it met all the requirements under the Fair Work Act.

The Commission's final order was that the Construction, Forestry and Maritime Employees Union (Victorian Construction and General Division) Subcontractors Concrete Pumping Enterprise Agreement 2020-2023 between Workstaff Pty Ltd and Concorp Trading Pty Ltd trading as Precision Shotcrete was approved and registered as a registered agreement under the Fair Work Act 2009. The agreement was to be in effect from 1 July 2020 to 30 June 2023, and all employees covered by the agreement would be bound by its terms and conditions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established