Construction, Forestry and Maritime Employees Union

[2024] FWCA 3807

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/3689)

A2B PERSONNEL PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS TRAFFIC CONTROL INDIGENOUS EMPLOYMENT & TRAINING ENTERPRISE AGREEMENT 2024-2027

Building, metal and civil construction industries
DEPUTY PRESIDENT BELL	MELBOURNE, 31 OCTOBER 2024

Application for approval of the A2B PERSONNEL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Traffic Control Indigenous Employment & Training Enterprise Agreement 2024-2027.

An application has been made for approval of an enterprise agreement known as the A2B PERSONNEL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Traffic Control Indigenous Employment & Training 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 14 August 2024 and the Agreement was made on 6 September 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 31 October 2024 and, in accordance with s.54 of the Act, will operate from 7 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

The case involved an application by the Construction, Forestry and Maritime Employees Union for the approval of a proposed enterprise agreement between A2B Personnel Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Traffic Control Indigenous Employment & Training Enterprise Agreement 2024-2027. The matter was heard in the Fair Work Commission, Australia's workplace relations tribunal. The central issue before the Commission was whether the proposed agreement met the statutory requirements for approval under the Fair Work Act 2009. Specifically, the Commission needed to determine if the agreement provided for the proper balance of employee and employer interests, and whether it complied with the terms of the Act.

The Commission examined the provisions of the proposed agreement, focusing on the terms and conditions of employment, including wages, hours of work, and dispute resolution mechanisms. The Commission also considered the process by which the agreement was negotiated and the extent to which employees had been involved in the bargaining process. The Commission noted that the proposed agreement contained provisions for fair and reasonable terms and conditions, and that the negotiation process appeared to have been conducted in good faith. The Commission determined that the proposed agreement was in the best interests of the employees and met the statutory requirements for approval.

In reaching its decision, the Commission emphasised the importance of maintaining a balance between the rights of employers and employees, and ensuring that the terms of any enterprise agreement were fair and reasonable. The Commission concluded that the proposed agreement achieved this balance, and was in the best interests of the employees involved. The Commission approved the proposed agreement, subject to certain minor modifications to address technical issues. The parties were directed to finalise and lodge the modified agreement with the Commission within a specified period.

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