Construction, Forestry and Maritime Employees Union

[2024] FWCA 950

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/635)

ARBORCRAFT TREE SERVICES PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS ONSITE ARBORICULTURE ENTERPRISE AGREEMENT 2020-2023

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

Application for approval of the ARBORCRAFT TREE SERVICES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Onsite Arboriculture Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the ARBORCRAFT TREE SERVICES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Onsite Arboriculture 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 13 February 2024 and the Agreement was made on 6 March 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

In this case, the Construction, Forestry and Maritime Employees Union (CFMEU) sought approval of the Arborcraft Tree Services Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Onsite Arboriculture Enterprise Agreement 2020-2023. The dispute involved the terms and conditions of employment for workers in the arboriculture industry, specifically those engaged by Arborcraft Tree Services. The matter was heard in the Fair Work Commission of Australia, which has jurisdiction over such industrial matters.

The central legal issue before the Commission was whether the proposed enterprise agreement complied with the relevant provisions of the Fair Work Act 2009. Specifically, the Commission needed to determine if the agreement contained the required minimum terms and conditions, and whether it was "freely" and "genuinely" negotiated. The CFMEU argued that the agreement was a fair and reasonable reflection of the parties' negotiations, while no other party contested the agreement's substance.

The Commission found that the agreement contained all the minimum terms and conditions mandated by the Fair Work Act, and was indeed freely and genuinely negotiated. The Commission noted the extensive negotiation process and the parties' commitment to reaching a fair agreement. The CFMEU presented evidence of the negotiation process, which was supported by Arborcraft Tree Services. The Commission concluded that the agreement met the statutory requirements and was in the best interests of the employees.

The Commission approved the Arborcraft Tree Services Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Onsite Arboriculture Enterprise Agreement 2020-2023, effective from the date of the decision. The agreement will now govern the employment conditions for the relevant workers until it expires or is replaced by a new agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established