Construction, Forestry and Maritime Employees Union

[2024] FWCA 4182

[2024] FWCA 4182

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/4046)

ALL SYSTEMS CONTRACTORS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS EARTHMOVING, EXCAVATION AND DRAINAGE ENTERPRISE AGREEMENT 2024-2027

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 28 NOVEMBER 2024

Application for approval of the ALL SYSTEMS CONTRACTORS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2024-2027

1. An application has been made for approval of an enterprise agreement known as the ALL SYSTEMS CONTRACTORS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage 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.

1. 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 26 July 2024 and the Agreement was made on 4 October 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

1. 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.

1. 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.

1. Correspondence was sent to the Employer and Construction, Forestry and Maritime Employees Union on 31 October 2024 raising a concern that it appeared the method of vote was by a ‘show of hands’ counted by management and accordingly, it was unclear whether this constituted ‘a voting process that ensures the vote of each employee is not disclosed to or ascertainable by the employer’ in accordance with Principle 15a of the Statement of Principles.

1. The Construction, Forestry and Maritime Employees Union provided submissions on 18 November 2024 and conceded the conduct of the vote in this case would not appear to meet the criterion set out in Principle 15a of the Statement of Principles. However, it was submitted that in accordance with the Decision in Thompsons, Kelly & Lewis Pty Ltd t/a Flowserve Pump Division[2024] FWCA 2767, the CFMEU’s stated strong support for the approval of the enterprise agreement under consideration and the absence of any concerns raised by the CFMEU as to the genuineness of the agreement of the employees who will be covered to the agreement should outweigh strict non-compliance with that criterion.

1. Having regard to the CFMEU submissions and the Statement of Principles on Genuine Agreement and in particular Principles 15 and 19, I am satisfied in the circumstances that the Agreement was genuinely agreed.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 December 2024. The nominal expiry date of the Agreement is 2 July 2027.

DEPUTY PRESIDENT

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