Construction, Forestry and Maritime Employees Union Summary

[2024] FWCA 3795

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/3934)

TARRON CONSTRUCTIONS AUSTRALASIA PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CARPENTRY & JOINERY ENTERPRISE AGREEMENT 2024 - 2027

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

Application for approval of the TARRON CONSTRUCTIONS AUSTRALASIA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry & Joinery Enterprise Agreement 2024 – 2027.

An application has been made for approval of an enterprise agreement known as the TARRON CONSTRUCTIONS AUSTRALASIA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry & Joinery 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 12 July 2024 and the Agreement was made on 24 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

The matter before the Fair Work Commission concerned an application for the approval of a proposed enterprise agreement between Tarron Constructions Australasia Pty Ltd and the Construction, Forestry and Maritime Employees Union (Victorian Construction and General Division) for the Subcontractors Carpentry & Joinery Enterprise Agreement 2024 – 2027. The application was made by the union on behalf of its members who were employed as carpenters and joiners by the company. The primary dispute centred on whether the proposed agreement met the legal requirements for approval under the Fair Work Act 2009. The Commission was required to determine if the agreement complied with all relevant provisions of the Act, including provisions relating to the avoidance of industrial action, the preservation of the right to bargain collectively, and the provision of fair and reasonable terms and conditions.

The legal issues that the Commission had to decide included whether the proposed agreement adequately provided for the avoidance of industrial action by ensuring that any disputes would be resolved through specified mechanisms, and whether it preserved the right to bargain collectively by including provisions for future negotiations. Additionally, the Commission needed to assess whether the terms and conditions outlined in the agreement were fair and reasonable, taking into account the needs of the employees, the nature of the business, and the broader economic environment. The Commission also had to consider whether the agreement contained any provisions that were contrary to the public interest or that could undermine the integrity of the industrial relations system.

After examining the evidence and submissions presented by the parties, the Commission determined that the proposed agreement met all the necessary legal requirements. The Commission found that the agreement provided for the avoidance of industrial action through specified dispute resolution mechanisms, and that it preserved the right to bargain collectively by including provisions for future negotiations. The terms and conditions of the agreement were deemed to be fair and reasonable, taking into account the needs of the employees and the nature of the business. The Commission concluded that the agreement did not contain any provisions that were contrary to the public interest or that could undermine the integrity of the industrial relations system. Consequently, the Commission approved the proposed enterprise agreement, which would now apply to the employees of Tarron Constructions Australasia Pty Ltd from the effective date.

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