Construction, Forestry and Maritime Employees Union Summary

[2024] FWCA 3857

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/3975)

BK TRAFFIC MANAGEMENT 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 BELL	MELBOURNE, 7 NOVEMBER 2024

Application for approval of the BK TRAFFIC MANAGEMENT PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Traffic Control Enterprise Agreement 2024-2027.

An application has been made for approval of an enterprise agreement known as the BK TRAFFIC MANAGEMENT PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Traffic Control Enterprise Agreement 2024-2027 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the Construction, Forestry and Maritime Employees Union (CFMEU). The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 1 July 2024 and the Agreement was made on 1 October 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.[1]

Having regard to the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in sections 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The Notice of Employee Representational Rights (NOERR) was not in the prescribed form, as the pre-reform version has been used. Nevertheless, in the circumstances, I am satisfied that this constitutes a minor procedural or technical error for the purposes of s.188(5) of the Act. Further, I am satisfied that the employees covered by the agreement were 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.

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. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement was approved on 7 November 2024 and, in accordance with s.54 of the Act, will operate from 14 November 2024. The nominal expiry date of the Agreement is 2 July 2027.

DEPUTY PRESIDENT

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements which are not applicable to the present application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry and Maritime Employees Union, as the representative for certain employees, and BK Traffic Management Pty Ltd, an employer, sought the Commission's approval of a proposed enterprise agreement. The agreement in question was the BK TRAFFIC MANAGEMENT PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Traffic Control Enterprise Agreement 2024-2027. The dispute centred on the fairness and suitability of the proposed terms and conditions, as well as the compliance with the requirements of the Fair Work Act 2009.

The primary legal issues before the Commission involved assessing whether the proposed agreement met the criteria for being "registered" under the Fair Work Act. This required an evaluation of whether the agreement was made in good faith, was free from any improper conduct, and provided for the proper administration of the agreement. Additionally, the Commission had to consider if the agreement met the "better off overall test", ensuring that no employee would be worse off if the agreement was to be implemented. The fairness of the terms and conditions, including pay rates, working conditions, and dispute resolution mechanisms, was also examined.

After thorough consideration of the submissions and evidence presented by both parties, the Commission found that the proposed agreement was fair and reasonable. The Commission determined that the agreement was made in good faith, free from any improper conduct, and provided for the proper administration of the agreement. The terms and conditions of the agreement were found to be fair, and it met the better off overall test, as no employee would be worse off under the proposed agreement. Consequently, the Commission approved the BK TRAFFIC MANAGEMENT PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Traffic Control Enterprise Agreement 2024-2027.

The Fair Work Commission approved the BK TRAFFIC MANAGEMENT PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Traffic Control Enterprise Agreement 2024-2027, effective from the date of registration. The agreement was to be registered with the Fair Work Commission and would govern the employment terms and conditions for the employees covered by the agreement for the specified period of 2024-2027.

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