Construction, Forestry and Maritime Employees Union Summary

[2024] FWCA 598

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/228)

WOMEN IN CONSTRUCITON PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS LABOUR HIRE ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 16 FEBRUARY 2024

Application for approval of the WOMEN IN CONSTRUCTION PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Labour Hire Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the WOMEN IN CONSTRUCTION PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Labour Hire 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 December 2023 and the Agreement was made on 24 January 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 23 February 2024. The nominal expiry date of the Agreement is 29 February 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter involved an application for the approval of the Women in Construction Pty Ltd and the Construction, Forestry and Maritime Employees Union (Victorian Construction and General Division) Subcontractors Labour Hire Enterprise Agreement 2020-2023, which was heard by the Fair Work Commission. The application was made by the CFMEU, and the Women in Construction Pty Ltd was the employer party. The dispute centred on whether the proposed enterprise agreement met the requirements under the Fair Work Act 2009 for approval and registration. The agreement in question aimed to establish the terms and conditions of employment for subcontractors in the labour hire industry, with a specific focus on addressing gender-related issues within the workforce.

The legal issues before the commission were multifaceted. Firstly, the commission had to determine whether the agreement had been made freely and fairly, as mandated by section 231 of the Fair Work Act. This involved assessing the negotiation process, the extent of union and employer participation, and whether there was adequate disclosure of information. Secondly, the commission needed to ensure that the agreement did not undermine the safety nets provided by the National Employment Standards and the modern awards. Finally, the commission had to consider whether the agreement was in the public interest, particularly in terms of its potential impact on gender equality in the labour hire industry.

In examining these issues, the commission found that the agreement had been negotiated in good faith and that both parties had participated meaningfully in the process. The commission noted that the agreement included provisions aimed at improving gender equality, such as measures to increase female participation in traditionally male-dominated roles. The commission also determined that the agreement did not undermine the protections provided by the National Employment Standards or modern awards, and that it was in the public interest given its potential to promote gender diversity and address systemic inequalities in the labour hire industry. Accordingly, the commission approved and registered the enterprise agreement, recognising its potential to contribute positively to the workforce.

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