Construction, Forestry and Maritime Employees Union Summary

[2024] FWCA 540

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/165)

ASSET SURVEY SOLUTIONS PTY LTD AND 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 FEBRUARY 2024

Application for approval of the ASSET SURVEY SOLUTIONS PTY LTD and 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 ASSET SURVEY SOLUTIONS PTY LTD and 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 22 December 2023 and the Agreement was made on 30 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 19 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 parties involved in this case were the Construction, Forestry and Maritime Employees Union and ASSET SURVEY SOLUTIONS PTY LTD. The matter was before the Fair Work Commission, which was tasked with determining whether to approve the Subcontractors Marking and Setting Out Enterprise Agreement 2020-2023. The nature of the dispute centred around the terms and conditions set forth in the proposed enterprise agreement between the union and the employer, which sought to govern the employment of subcontractors within the marking and setting out industry.

The key legal issues before the Commission were whether the terms of the proposed enterprise agreement were fair and reasonable, and whether they complied with the requirements of the Fair Work Act 2009. This included assessing whether the agreement adequately protected the interests of employees and employers, and whether it promoted productivity, sustainability and efficiency within the industry. Additionally, the Commission needed to consider whether the agreement was in line with the principles of enterprise bargaining, and whether it met the specific requirements for the approval of enterprise agreements under the Fair Work Act.

The Fair Work Commission concluded that the proposed enterprise agreement was fair and reasonable, and met the necessary requirements for approval under the Fair Work Act. The Commission found that the agreement provided adequate protections for employees and employers, and promoted productivity, sustainability and efficiency within the industry. The Commission also noted that the agreement was in line with the principles of enterprise bargaining, and met the specific requirements for the approval of enterprise agreements under the Fair Work Act. Consequently, the Commission approved the Subcontractors Marking and Setting Out Enterprise Agreement 2020-2023, with the approval being effective from the date of the decision.

In light of the Commission's decision, the Fair Work Commission approved the Subcontractors Marking and Setting Out Enterprise Agreement 2020-2023 between the Construction, Forestry and Maritime Employees Union and ASSET SURVEY SOLUTIONS PTY LTD. The agreement was deemed to be fair and reasonable, and in compliance with the Fair Work Act. The approval of the enterprise agreement ensures that the terms and conditions governing the employment of subcontractors within the marking and setting out industry are governed by a fair and balanced agreement that promotes productivity, sustainability and efficiency.

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