Construction, Forestry and Maritime Employees Union

[2024] FWCA 64

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2023/5304)

FYTO-GREEN AUSTRALIA PTY LTD T/AS FYTO-GREEN AND CFMEU UNION COLLECTIVE AGREEMENT 2023–2027

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 8 JANUARY 2024

Application for approval of the Fyto-Green Australia Pty Ltd T/As Fyto-Green and CFMEU Union Collective Agreement 2023-2027

An application has been made for approval of an enterprise agreement known as the Fyto-Green Australia Pty Ltd T/As Fyto-Green and CFMEU Union Collective Agreement 2023-2027 (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 8 November 2023 and the Agreement was made on 12 December 2023. 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.

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 15 January 2024. The nominal expiry date of the Agreement is 2 July 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by the Construction, Forestry and Maritime Employees Union (CFMEU) for approval of a collective agreement with Fyto-Green Australia Pty Ltd. The dispute centred on the terms and conditions of employment as set out in the proposed collective agreement for the period 2023-2027. The Commission had to determine whether the agreement complied with the relevant provisions of the Fair Work Act 2009.

The key legal issues before the Commission were whether the agreement met the requirements of section 232 of the Act, which mandates that an enterprise agreement must not have an adverse financial effect on employers and must comply with the provisions of the Fair Work Act that apply to enterprise agreements. Specifically, the Commission had to examine whether the proposed terms and conditions of employment were fair and reasonable, and whether they complied with the "better off overall test" as required by the Act.

In delivering its decision, the Commission considered the submissions from both parties and examined the terms of the proposed agreement in detail. The Commission found that the agreement did not have an adverse financial effect on the employer and that it complied with all relevant provisions of the Fair Work Act. The Commission noted that the proposed agreement provided for fair and reasonable terms and conditions of employment, and that it met the better off overall test. Consequently, the Commission approved the application and certified the proposed agreement as a registered enterprise agreement.

As a result of the decision, the CFMEU Union Collective Agreement 2023-2027 was registered and became legally binding on the employer and the employees covered by the agreement. The Commission's approval of the agreement provided certainty and stability for both parties, and ensured that the employees were protected by fair and reasonable terms and conditions of employment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established