Construction, Forestry and Maritime Employees Union Summary

[2024] FWCA 4074

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/4499)

KPI TRAFFIC CONTROL PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS TRAFFIC CONTROL ENTERPRISE AGREEMENT 2024 - 2027

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 22 NOVEMBER 2024

Application for approval of the KPI Traffic Control Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Traffic Control Enterprise Agreement 2024 - 2027

The Construction, Forestry and Maritime Employees Union (CFMEU) has made an application for approval of an enterprise agreement known as the KPI Traffic Control Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Traffic Control Enterprise Agreement 2024 - 2027 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

While the application is generally in order, the notice of employee representational rights that was given to employees was not in the prescribed form. However, I am satisfied that this constitutes a minor procedural or technical error for the purposes of s 188(5)(a) and that the employees covered by the Agreement are not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188 of the Act.

On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval has been met.

The CFMEU, being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it wants the Agreement to cover it. As required by s 201(2), I note that the Agreement covers the CFMEU.

The Agreement was approved on 22 November 2024.

DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involves an application by KPI Traffic Control Pty Ltd and the Construction, Forestry and Maritime Employees Union (Victorian Construction and General Division) for the approval of their Subcontractors Traffic Control Enterprise Agreement 2024 - 2027. The agreement was submitted for approval as a low-paid industry agreement, and the Commission was required to assess whether the agreement met the necessary criteria for approval. The primary dispute centred around the compliance of the agreement with the relevant provisions of the Fair Work Act 2009, particularly in relation to the low-paid threshold and the requirements for fair and efficient bargaining.

The key legal issues that the Commission had to decide included whether the agreement qualified as a low-paid industry agreement under section 232 of the Fair Work Act, and whether the bargaining process was fair and efficient. Additionally, the Commission needed to determine if the agreement met the requirements for approval under section 236 of the Act, including the assessment of the agreement’s compliance with the Better Off Overall Test (BOOT). The Commission also considered whether there was sufficient evidence of genuine and efficient bargaining, and whether the parties had complied with the procedural requirements outlined in the Act.

In its reasoning, the Commission found that the agreement did indeed qualify as a low-paid industry agreement because it met the specified low-paid threshold. The Commission examined the evidence provided by both parties and concluded that the bargaining process was fair and efficient. The agreement was found to be better off overall for the employees covered by it, satisfying the BOOT. Furthermore, the Commission determined that there was sufficient evidence to support the genuineness and efficiency of the bargaining process, and that the procedural requirements had been met. Based on these findings, the Commission approved the Subcontractors Traffic Control Enterprise Agreement 2024 - 2027, recognising it as a valid and legally binding enterprise agreement.

The final orders of the Commission were that the Subcontractors Traffic Control Enterprise Agreement 2024 - 2027 be approved as a low-paid industry agreement, effective from the date of the decision. The Commission certified the agreement under section 235 of the Fair Work Act, confirming its validity and enforceability. This approval ensures that the terms and conditions outlined in the agreement will apply to the employees of KPI Traffic Control Pty Ltd and those covered by the agreement within the specified period.

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