Construction, Forestry and Maritime Employees Union Summary

[2024] FWCA 782

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/401)

TOORAK CONTRACTORS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS FORMWORK ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 4 MARCH 2024

Application for approval of the TOORAK CONTRACTORS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the TOORAK CONTRACTORS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork 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 19 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 11 February 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 before the Fair Work Commission involved an application by the Construction, Forestry and Maritime Employees Union, acting on behalf of the CFMEU (Victorian Construction and General Division) Subcontractors, for the approval of the Toorak Contractors Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023. The agreement was to cover employees in the formwork sector employed by Toorak Contractors Pty Ltd and other specified employers. The dispute centred on whether the agreement complied with the relevant provisions of the Fair Work Act 2009 and whether it could be approved by the Commission.

The primary legal issues before the Commission were whether the agreement met the formal requirements for approval under the Fair Work Act and whether the agreement contained terms that were consistent with the Act's objectives, particularly regarding the protection of employees and the maintenance of industrial peace and harmony. The Commission needed to determine if the agreement's terms provided fair and reasonable protections to employees and did not unfairly disadvantage employers. The Commission also considered whether the agreement provided for a fair dispute resolution process and whether the agreement was genuinely negotiated.

The Commission found that the agreement met all formal requirements for approval and contained terms that were consistent with the objectives of the Fair Work Act. The Commission noted that the agreement provided for fair and reasonable protections for employees, including provisions for minimum wages, penalty rates, leave entitlements, and health and safety. The Commission also found that the agreement provided for a fair dispute resolution process and that the agreement was genuinely negotiated. The Commission concluded that the agreement was fair and reasonable and approved it for registration. The Commission noted that the agreement would provide benefits to employees, including increased wages and improved working conditions, and would also provide benefits to employers, including increased productivity and reduced industrial disputes.

The final orders of the Commission were that the Toorak Contractors Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023 be approved for registration and that it be registered by the Commission. The agreement will now be binding on all employees and employers covered by the agreement, and it will provide a framework for the fair and reasonable treatment of employees in the formwork sector.

Construction, Forestry and Maritime Employees Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established