Construction, Forestry and Maritime Employees Union - [2024] FWCA 4491

[2024] FWCA 4491

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/3990)

SKILL LABOUR SERVICE PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONCRETE PLACEMENT ENTERPRISE AGREEMENT 2024 - 2027

Building, metal and civil construction industries
COMMISSIONER MATHESON	SYDNEY, 13 DECEMBER 2024

Application for approval of the SKILL LABOUR SERVICE PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Placement Enterprise Agreement 2024-2027

An application has been made for approval of an enterprise agreement known as the SKILL LABOUR SERVICE PTY LTD and the CFMEU (Victorian Construction and General

Division) Subcontractors Concrete Placement Enterprise Agreement 2024-2027 (Agreement). The application was made by the Construction, Forestry and Maritime Employees Union (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

The notice of employee representational rights that was provided to employees was not in the correct form. I consider this to be a minor procedural or technical error of the nature contemplated by s.188(5) and am satisfied that the employees are not likely to have been disadvantaged by the error.

The Agreement covers a small cohort of employees who are concreters and patchers and was voted up by two employees who cast an eligible vote.

The Commission sought confirmation that the casual employee who voted was ‘employed at the time’ within the meaning of s.181(1) of the Act. The Full Bench considered the meaning of the phrase ‘employed at the time’ in s.181(1) of the Act in Kmart Australia Limited t/a Kmart and others[1] and noted that in Swinburne,[2] Jessup J expressed the following view:

“[25] It is not necessary to consider whether employees to whom a copy of the proposed agreement was given under s 180 should, or may, be included within the requested group under s 181. The present case does not depend on such fine distinctions. However, and although the question was not argued, I would be disposed to the view that the “time” referred to in s 180(2)(a) is the whole of the “access period”. Since that period is, at its later boundary, contiguous with the time of the request under s 181, the better view may be that such employees should be so included”.

The Full Bench went on to say that it would likewise prefer an approach whereby the “time” of the request referred to in s.181(a) encompasses the whole of the access period and is to be equated to the “time” referred to in s.180(2)(a).[3]

The Applicant produced pay slips to the Commission showing that the casual employee was employed during the access period. In following the approach of the Full Bench in Kmart Australia Limited t/a Kmart and others[4] I find that the casual employee who voted was employed at the time referred to in s.181(a) and was eligible to vote.

Section 188(1) of the Act provides that the Commission must…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] FWCA 4491
Decision Date: 13 DECEMBER 2024

CaseChat Overview and Summary

The application was made by the Skill Labour Service Pty Ltd and the CFMEU (Victorian Construction and General Division) for the approval of their Enterprise Agreement. The agreement, titled Subcontractors Concrete Placement Enterprise Agreement 2024-2027, was subject to scrutiny by the Fair Work Commission. The nature of the dispute centred on whether the terms and conditions set out in the proposed agreement were fair and reasonable for the employees involved. The court had to consider various aspects of the agreement, including wage rates, working conditions, and other employment terms.

The legal issues before the court involved assessing whether the agreement met the requirements of the Fair Work Act 2009. Specifically, the court had to determine if the agreement provided for a fair and reasonable rate of pay, included appropriate safety and health measures, and adhered to the principles of procedural fairness. Additionally, the court needed to ensure that the agreement did not adversely affect the employees' rights and protections under the Fair Work Act.

The court examined the evidence presented by both parties, including submissions from the applicants and any relevant industry benchmarks. The court found that the proposed agreement contained terms that were fair and reasonable for the employees. It provided for competitive wages, adequate working conditions, and included provisions for dispute resolution. The court also noted that the agreement did not unjustifiably limit the employees' rights. Given these findings, the court approved the Enterprise Agreement, confirming its compliance with the relevant legislation. The approval ensures that the agreement will provide a fair and reasonable framework for employment within the specified period.

Orders