Construction, Forestry and Maritime Employees Union

[2024] FWCA 3739

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/3939)

ALTO BMG TRUST (THE TRUSTEE FOR) 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, 28 OCTOBER 2024

Application for approval of the ALTO BMG TRUST (THE TRUSTEE FOR) 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 ALTO BMG TRUST (THE TRUSTEE FOR) 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 11 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). 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 28 October 2024 and, in accordance with s.54 of the Act, will operate from 4 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

The applicants, ALTO BMG TRUST (THE TRUSTEE FOR) and the CFMEU (Victorian Construction and General Division), sought approval for a proposed enterprise agreement. This application was heard by the Fair Work Commission. The dispute centred on whether the proposed agreement met the necessary legal standards and whether it was appropriate for the intended period of 2024 to 2027.

The legal issues before the court included whether the proposed agreement complied with the Fair Work Act 2009, particularly in relation to the mandatory requirements for enterprise agreements. This encompassed considerations such as whether the agreement adequately protected employees' rights and interests, and whether it conformed to the procedural and substantive requirements of the Act. Additionally, the court had to assess whether the agreement was free from any unfair content.

The Commission found that the proposed agreement complied with the legal standards set out in the Fair Work Act 2009. It was determined that the agreement met the necessary procedural requirements and did not contain any unfair content. The agreement was also found to adequately protect the rights and interests of the employees. Therefore, the Commission approved the proposed agreement for the period from 2024 to 2027. This decision was based on a detailed examination of the agreement's provisions and their alignment with the statutory requirements.

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