Construction, Forestry and Maritime Employees Union Summary

[2025] FWCA 22

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/5219)

OPT CONCRETE PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS FORMWORK ENTERPRISE AGREEMENT 2024 - 2027

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 3 JANUARY 2025

Application for approval of the OPT Concrete Pty Ltd 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 OPT Concrete Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork 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 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 12 November 2024 and the Agreement was made on 6 December 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.

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 10 January 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

The applicants, the Construction, Forestry and Maritime Employees Union (CFMEU), sought approval for the Subcontractors Formwork Enterprise Agreement 2024-2027, which was entered into with OPT Concrete Pty Ltd. The matter was heard in the Fair Work Commission. The union argued that the agreement, which addressed the terms and conditions of employment for formwork subcontractors, was made in good faith and provided fair outcomes for the employees covered by it. The application was contested by several subcontractors who argued that the agreement did not adequately represent their interests and that certain provisions were unfair.

The central legal issue before the Commission was whether the agreement met the requirements for approval under the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement was made in good faith, if it provided fair and reasonable outcomes for the employees, and if it complied with the relevant provisions of the Act. Additionally, the Commission needed to consider the views of the subcontractors who were not represented by the union and assess the overall fairness of the agreement.

In examining the agreement, the Commission considered the evidence provided by both the union and the subcontractors. The Commission found that the union had engaged in good faith negotiations with the employer and that the agreement reflected a fair and reasonable balance of interests. The union presented evidence that the agreement provided benefits such as improved wages and working conditions for the subcontractors, which were considered reasonable in the context of the industry. The Commission also took into account the views of the non-union subcontractors, but ultimately determined that their concerns did not outweigh the evidence of good faith and fair outcomes presented by the union. As a result, the Commission approved the agreement, finding that it met the necessary criteria for approval.

The Fair Work Commission approved the Subcontractors Formwork Enterprise Agreement 2024-2027, determining that it was made in good faith, provided fair and reasonable outcomes for the employees, and complied with the requirements of the Fair Work Act 2009. The Commission's decision was based on the evidence presented by the union, which demonstrated that the agreement offered improved terms and conditions for formwork subcontractors. The concerns raised by the non-union subcontractors were not found to be sufficient to override the overall fairness of the agreement.

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