Construction, Forestry and Maritime Employees Union

[2024] FWCA 434

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/107)

OPT CONCRETE 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, 2 FEBRUARY 2024

Application for approval of the OPT CONCRETE 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 OPT CONCRETE 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 5 December 2023 and the Agreement was made on 23 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 9 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 before the Fair Work Commission concerned an application for approval of the OPT CONCRETE PTY LTD and the Construction, Forestry and Maritime Employees Union (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023. The applicant, OPT CONCRETE PTY LTD, sought the Commission's approval for the agreement which it had negotiated with the Union, seeking to have the agreement registered under the Fair Work Act 2009. The Union supported the application, while no other party opposed the agreement.

The primary legal issues before the Commission were whether the agreement met the requirements of the Fair Work Act, specifically if it complied with the good faith bargaining provisions and provided for minimum entitlements and protections for employees. The Commission needed to determine if the agreement was in the best interests of the employees covered by it and if it complied with all the necessary statutory provisions. Furthermore, the Commission was required to ensure the agreement did not undermine the operation of the Fair Work Act.

The Fair Work Commission found that the agreement was negotiated in good faith and that it provided for minimum entitlements and protections for employees. The Commission considered that the agreement was fair and reasonable, and in the best interests of the employees. It was noted that the agreement contained provisions that were consistent with the objectives of the Fair Work Act, including provisions for dispute resolution and protections for employees. The Commission was satisfied that the agreement did not undermine the operation of the Fair Work Act and approved the application for registration.

The Fair Work Commission approved the OPT CONCRETE PTY LTD and the Construction, Forestry and Maritime Employees Union (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023 and registered it under the Fair Work Act. The agreement is now legally binding on the parties and provides a framework for the employment conditions of the employees covered by it.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established