Construction, Forestry and Maritime Employees Union

[2025] FWCA 137

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Construction, Forestry and Maritime Employees Union

(AG2024/4820)

TOOHEYS FORM CRETE AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS FORMWORK ENTERPRISE AGREEMENT 2024-2027

Building, metal and civil construction industries
COMMISSIONER PLATT	ADELAIDE, 16 JANUARY 2025

Application for approval of the TOOHEYS FORM CRETE and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2024 - 2027

An application has been made for approval of an enterprise agreement known as the TOOHEYS FORM CRETE and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2024 - 2027 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by the Construction, Forestry and Maritime Employees Union (the Applicant). The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 12 December 2024.

On 13 December 2024, 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.

On 15 January 2025, the Applicant provided a statutory declaration of Damian Toohey 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 case involved an application for the approval of an enterprise agreement between Tooheys Form Crete and the Construction, Forestry and Maritime Employees Union (Victorian Construction and General Division). The union sought to have the Subcontractors Formwork Enterprise Agreement 2024 - 2027 approved under the Fair Work Act 2009. The application was heard and determined in the Fair Work Commission.

The primary legal issue before the Commission was whether the agreement complied with the requirements of the Fair Work Act. This included assessing whether the agreement was made in good faith and whether it met the 'better off overall test', ensuring that employees were not worse off financially than under the previous agreement or the applicable award. The Commission also needed to consider whether the agreement contained the mandatory terms and conditions as required by the Act, and whether any provisions were contrary to public policy.

The Commission examined the terms of the agreement and the submissions made by both parties. It found that the agreement was made in good faith and that the parties had engaged in genuine bargaining. The Commission determined that the agreement met the 'better off overall test', as it provided for increased wages and improved conditions for employees. It also found that the agreement contained all the mandatory terms and conditions and did not contravene any public policy considerations. Based on these findings, the Commission approved the agreement, confirming its compliance with the requirements of the Fair Work Act.

The final orders of the Commission were that the Subcontractors Formwork Enterprise Agreement 2024 - 2027, as lodged, be approved under section 186 of the Fair Work Act 2009. The agreement was to be registered by the Registrar of the Fair Work Commission and would be in effect from the date of approval, binding on all parties involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established