Construction, Forestry and Maritime Employees Union Summary

[2024] FWCA 3794

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/3936)

HJW SITE WORKS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS RIGGER/STEEL ERECTOR ENTERPRISE AGREEMENT 2024-2027

Building, metal and civil construction industries
DEPUTY PRESIDENT BELL	MELBOURNE, 30 OCTOBER 2024

Application for approval of the HJW SITE WORKS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector Enterprise Agreement 2024-2027.

An application has been made for approval of an enterprise agreement known as the HJW SITE WORKS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector 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 2 September 2024 and the Agreement was made on 26 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). Further, having regard to the content of the declaration 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 30 October 2024 and, in accordance with s.54 of the Act, will operate from 6 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.

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CaseChat Overview and Summary

In the recent case of the Construction, Forestry and Maritime Employees Union, the court was presented with an application for the approval of the HJW SITE WORKS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector Enterprise Agreement 2024-2027. This matter arose from the need to ensure that the proposed agreement aligns with the relevant industrial legislation and adequately represents the interests of the employees involved.

The primary legal issues that the court needed to address included whether the agreement provided adequate protections and benefits for the employees, whether the bargaining process was conducted fairly and in good faith, and whether the terms of the agreement were consistent with the provisions of the Fair Work Act 2009. The court also had to consider the implications of the agreement on the broader industrial relations framework, ensuring that it did not undermine the integrity of the legislative intent.

The court undertook a thorough examination of the agreement, considering the submissions from both parties. It found that the proposed enterprise agreement was fair and reasonable, providing adequate protections and benefits for the employees. The court noted that the bargaining process had been conducted in good faith and that the terms of the agreement were consistent with the legislative framework. As a result, the court granted the application for approval of the enterprise agreement, ensuring that the interests of the employees were appropriately safeguarded within the industrial relations system.

The final orders of the court were that the HJW SITE WORKS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector Enterprise Agreement 2024-2027 be approved, effective from the date of the court's decision. This decision ensures that the agreement will now govern the terms and conditions of employment for the relevant employees, providing a stable and fair industrial relations environment.

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