Construction, Forestry and Maritime Employees Union

[2024] FWCA 4025

[2024] FWCA 4025

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/4240)

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

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 19 NOVEMBER 2024

Application for approval of the Zanda Civil Construction Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2024 - 2027

1. The Construction, Forestry and Maritime Employees Union (CFMEU) has made an application for approval of an enterprise agreement known as the Zanda Civil Construction Pty Ltd 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). The Agreement is a single enterprise agreement.

1. The F17 declaration lodged by the employer stated that the voting method was by show of hands, and that hands were counted by management. Paragraph 15(a) of the Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023 provides that employees ‘should be given a reasonable opportunity to vote on a proposed enterprise agreement in a free and informed manner’, and that this ‘should include a voting process that ensures the vote of each employee is not disclosed to or ascertainable by the employer’. The CFMEU submitted that compliance with paragraph 15(a), while desirable, was not mandatory, and that the Commission should be satisfied in this case that the Agreement was genuinely approved. In this regard, it noted that the Agreement was self-evidently one that provided for wages and conditions of employment that were significantly superior to those in the underpinning award. It also noted that the Agreement was unconditionally supported by the sole employee bargaining representative, the CFMEU, which had not raised any concerns that the Agreement was not genuinely agreed to by the employees. The CFMEU said that this was a matter that should be given significant weight by the Commission in considering whether the Agreement has been genuinely agreed, in accordance with paragraph 19 of the statement of principles.

1. I accept these submissions. In my view the employees in this case had a reasonable opportunity to vote on the Agreement in a free and informed manner. There is nothing to suggest that the employer’s presence at the show of hands or its role in counting them had any adverse effect on employees. It did not compromise the genuineness of their agreement. I am satisfied that the Agreement was genuinely agreed to by the employees covered by it (see s 186(2)(a) of the Act).

1. 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.

1. 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.

1. The Agreement was approved on 19 November 2024.

DEPUTY PRESIDENT
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