Construction, Forestry and Maritime Employees Union

[2024] FWCA 888

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/511)

INDEPENDENT SURVEYORS 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, 12 MARCH 2024

Application for approval of the INDEPENDENT SURVEYORS 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 INDEPENDENT SURVEYORS 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 23 January 2024 and the Agreement was made on 20 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 19 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 applicants, Independent Surveyors Pty Ltd and the Construction, Forestry and Maritime Employees Union (Victorian Construction and General Division), sought approval for a Subcontractors Marking and Setting Out Enterprise Agreement 2020-2023. The Fair Work Commission was tasked with determining whether the proposed agreement was in the best interests of the employees involved. The Commission had to consider whether the agreement met the requirements of the Fair Work Act 2009, specifically focusing on whether it was a simple, fair, and flexible agreement, and if it contained appropriate minimum terms and conditions. The Commission also needed to assess whether the agreement facilitated productivity and provided for the orderly resolution of workplace disputes.

The central legal issue was whether the proposed agreement complied with the statutory criteria for approval, ensuring that it was a simple, fair, and flexible agreement. Additionally, the Commission had to verify that the agreement contained minimum terms and conditions, and that it facilitated productivity and orderly dispute resolution. The Commission examined the provisions of the proposed agreement against these criteria, assessing whether it met the necessary standards for approval.

In reaching its decision, the Commission reviewed the proposed agreement clause by clause. It found that the agreement did indeed meet the statutory criteria. The agreement was simple, fair, and flexible, containing appropriate minimum terms and conditions. Furthermore, the agreement was considered to facilitate productivity and provide for the orderly resolution of workplace disputes. The Commission concluded that the proposed agreement was in the best interests of the employees involved and granted approval. The Commission's approval was based on the comprehensive analysis of the agreement's provisions and its alignment with the statutory requirements.

The Fair Work Commission approved the Subcontractors Marking and Setting Out Enterprise Agreement 2020-2023, effective from 1 January 2020. This decision formalises the terms and conditions of employment for subcontractors in the marking and setting out industry, ensuring that the agreement is simple, fair, and flexible while meeting the statutory minimum standards. This approval facilitates productivity and provides a framework for the orderly resolution of workplace disputes within the industry.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established