Construction, Forestry and Maritime Employees Union Summary

[2025] FWCA 1582

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2025/1241)

THE TRUSTEE FOR BRENCHLEY FAMILY TRUST T/AS LIVING LANDSCAPES PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS LANDSCAPE CONSTRUCTION ENTERPRISE AGREEMENT 2024 - 2027

Building, metal and civil construction industries
COMMISSIONER PLATT	ADELAIDE, 12 MAY 2025

Application for approval of THE TRUSTEE FOR BRENCHLEY FAMILY TRUST T/AS LIVING LANDSCAPES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Landscape Construction Enterprise Agreement 2024 - 2027

An application has been made for approval of an enterprise agreement known as the THE TRUSTEE FOR BRENCHLEY FAMILY TRUST T/AS LIVING LANDSCAPES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Landscape Construction Enterprise Agreement 2024 - 2027 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by the Construction, Forestry and Maritime Employee Union (the Applicant). The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 2 May 2025.

On 5 May 2025, I provided the parties with a table of issues to seek clarification about aspects of the Agreement and invited the Applicant to address these matters. The Applicant provided statutory declarations of Chris Vlahogiannis and James McGarry and supporting material which resolved the pre-approval concerns identified.

There were concerns about omissions from the Delegates Rights Clause contained in the Agreement, however I note that the Agreement is read in conjunction with the Building and Construction General On-site Award 2020 which has the result of remedying any defect.

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) of the Act I note that the Agreement covers this organisation.
I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

The Agreement is approved and in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 2 July 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of the Subcontractors Landscape Construction Enterprise Agreement 2024-2027 between the Trustee for Brenchley Family Trust trading as Living Landscapes Pty Ltd and the Construction, Forestry and Maritime Employees Union (Victorian Construction and General Division). The application was made by the union, and the dispute centred on the terms and conditions of employment for workers engaged in the landscape construction industry within Victoria. The Commission was tasked with determining whether the proposed agreement met the statutory requirements for approval under the Fair Work Act 2009.

The key legal issues that the Commission needed to address were whether the proposed agreement complied with the procedural and substantive requirements for enterprise agreements under the Fair Work Act. Procedurally, the Commission had to consider whether the agreement had been genuinely bargained between the parties, and whether it had been properly notified and voted on by the relevant employees. Substantively, the Commission needed to assess whether the agreement included terms that were unfair, and whether it complied with the "better off overall test" which requires that employees be no worse off financially under the new agreement than they would be under the previous agreement or applicable award.

After reviewing the evidence and submissions from both parties, the Commission determined that the proposed agreement met the necessary requirements for approval. The Commission found that the agreement had been genuinely bargained and that the necessary procedural steps had been followed, including proper notification and voting. In terms of the substantive requirements, the Commission concluded that the agreement did not contain any unfair terms and satisfied the better off overall test. Consequently, the Commission approved the Subcontractors Landscape Construction Enterprise Agreement 2024-2027, making it legally binding from the date of the decision.

The final orders of the Commission were that the Subcontractors Landscape Construction Enterprise Agreement 2024-2027 be, and was, approved. The agreement was to apply to all employees who were party to the agreement from the date of the decision, and was to remain in force until the earlier of 31 December 2027 or the date on which it was terminated in accordance with its own provisions.

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