Construction, Forestry and Maritime Employees Union

[2024] FWCA 949

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/619)

TOPLINE SURVEYING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS MARKING AND SETTING OUT ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 19 MARCH 2024

Application for approval of the TOPLINE SURVEYING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Marking and Setting Out Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the TOPLINE SURVEYING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Marking and Setting Out 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 2 February 2024 and the Agreement was made on 27 February 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 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 26 March 2024. The nominal expiry date of the Agreement is 31 March 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the Construction, Forestry and Maritime Employees Union (CFMEU) and TOPLINE Surveying Pty Ltd. The union and the company sought approval of an enterprise agreement covering subcontractors in the surveying industry for the period 2020 to 2023. The dispute was heard in the Fair Work Commission, Australia's workplace relations tribunal. The key legal issues before the Commission were whether the proposed agreement complied with the requirements of the Fair Work Act 2009 and whether it met the "better off overall test" that requires the agreement's terms to be at least as good as the applicable award or registered agreement.

The Commission examined the agreement's provisions to determine whether it provided for a fair and equitable outcome for the employees covered by the agreement. The Commission also considered the parties' submissions and any relevant evidence. In approving the agreement, the Commission found that it met the statutory requirements and provided for terms and conditions of employment that were at least as good as those provided for in the relevant award. The agreement included provisions for minimum rates of pay, entitlements, and conditions for subcontractors working in the surveying industry.

The Commission approved the TOPLINE SURVEYING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Marking and Setting Out Enterprise Agreement 2020-2023. The agreement provides for minimum rates of pay, entitlements, and conditions for subcontractors in the surveying industry. The Commission found that the agreement met the statutory requirements and provided for terms and conditions of employment that were at least as good as those provided for in the relevant award. The approval of the agreement ensures that the employees covered by the agreement will receive fair and equitable terms and conditions of employment for the period of the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established