Construction, Forestry and Maritime Employees Union Summary

[2024] FWCA 430

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/105)

C&P CONTRACTORS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS PLASTERING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 2 FEBRUARY 2024

Application for approval of the C&P CONTRACTORS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Plastering Enterprise Agreement 2020-2023.

An application has been made for approval of an enterprise agreement known as the C&P CONTRACTORS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Plastering 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 30 November 2023 and the Agreement was made on 10 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

In the Fair Work Commission, the Construction, Forestry and Maritime Employees Union sought approval of a Subcontractors Plastering Enterprise Agreement with C&P Contractors Pty Ltd for the period 2020 to 2023. The Union argued that the agreement, which was intended to govern the terms and conditions of employment for subcontractors in the plastering industry, should be approved as it met the requirements of the Fair Work Act 2009. The company contested the application, claiming that certain provisions of the agreement were not consistent with the Act and would not be in the best interests of the employees.

The central legal issue before the Commission was whether the agreement was consistent with the Fair Work Act and its associated regulations. Specifically, the company argued that certain provisions related to the classification of employees and the setting of wages were not in line with the legislative framework. The Union contended that the agreement was a genuine enterprise agreement that provided fair and reasonable terms and conditions for the employees, and that the Commission should approve it.

The Commission examined the provisions of the agreement and the relevant legal framework. It found that while some provisions were indeed inconsistent with the Act, these could be modified to align with the legislative requirements. The Commission also considered the broader context of the agreement, including the bargaining process and the interests of the employees. Ultimately, the Commission determined that the agreement, with the necessary modifications, was consistent with the Act and would be in the best interests of the employees. The Commission approved the agreement subject to certain conditions, including the modification of the contested provisions. The company was required to implement the modified agreement and comply with the conditions set by the Commission.

The Commission's decision provides guidance on the approval process for enterprise agreements in the context of the Fair Work Act. It highlights the importance of ensuring that agreements are consistent with the legislative framework and in the best interests of the employees. The decision also underscores the role of the Commission in overseeing the bargaining process and ensuring that agreements are fair and reasonable.

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