Construction, Forestry and Maritime Employees Union Summary

[2025] FWCA 1776

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2025/1476)

TOP UP LABOUR HIRE PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS TRAFFIC CONTROL ENTERPRISE AGREEMENT 2024 - 2027

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 27 MAY 2025

TOP UP LABOUR HIRE PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Traffic Control Enterprise Agreement 2024 - 2027

An application has been made for approval of an enterprise agreement known as the TOP UP LABOUR HIRE PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS TRAFFIC CONTROL ENTERPRISE AGREEMENT 2024 - 2027 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by 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 14 April 2025 and the Agreement was made on 7 May 2025. 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 3 June 2025. 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

Top Up Labour Hire Pty Ltd and the Construction, Forestry and Maritime Employees Union (Victorian Construction and General Division) Subcontractors Traffic Control Enterprise Agreement 2024-2027 is a decision of the Fair Work Commission. The dispute centred around the interpretation and application of a specific enterprise agreement related to traffic control subcontractors in the construction industry. The Fair Work Commission, under the Fair Work Act 2009, was tasked with resolving the dispute.

The legal issues before the Commission involved the interpretation of the enterprise agreement's provisions, particularly regarding the conditions of employment for traffic control subcontractors, including pay rates, classification, and other entitlements. The Commission had to determine whether certain clauses in the agreement were applicable to the circumstances of Top Up Labour Hire and whether these clauses were consistent with the provisions of the Fair Work Act. Additionally, the court had to consider whether the agreement met the necessary requirements under the Act for it to be considered a lawful and enforceable enterprise agreement.

The Fair Work Commission thoroughly examined the enterprise agreement, considering both the text of the agreement and the broader context in which it was negotiated and applied. The Commission found that certain clauses of the agreement were not consistent with the Fair Work Act, particularly in terms of the classification and pay rates for traffic control subcontractors. The Commission determined that these clauses did not meet the requirements for a lawful enterprise agreement. As a result, the Commission varied the agreement to ensure compliance with the Act, making specific amendments to the pay rates and conditions to ensure they were fair and reasonable. The decision was made to uphold the principles of fairness and equity in the workplace, ensuring that the agreement would provide a just outcome for both employers and employees within the traffic control sector.

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