Construction, Forestry and Maritime Employees Union Summary

[2024] FWCA 3702

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/3743)

DM & FL BALDI PTY LTD T/AS STATEWIDE PANELS AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS PRECAST PANEL ENTERPRISE AGREEMENT 2024 -2027

Building, metal and civil construction industries
DEPUTY PRESIDENT BELL	MELBOURNE, 24 OCTOBER 2024

Application for approval of the DM & FL BALDI PTY LTD T/AS STATEWIDE PANELS and the CFMEU (Victorian Construction and General Division) Subcontractors Precast Panel Enterprise Agreement 2024 -2027.

An application has been made for approval of an enterprise agreement known as the DM & FL BALDI PTY LTD T/AS STATEWIDE PANELS and the CFMEU (Victorian Construction and General Division) Subcontractors Precast Panel 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 18 August 2024 and the Agreement was made on 13 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 24 October 2024 and, in accordance with s.54 of the Act, will operate from 31 October 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 case involves an application for the approval of the DM & FL Baldi Pty Ltd T/A Statewide Panels and the Construction, Forestry and Maritime Employees Union (Victorian Construction and General Division) Subcontractors Precast Panel Enterprise Agreement 2024-2027. This matter was heard in the Fair Work Commission. The legal issues before the court were primarily focused on whether the enterprise agreement met the necessary standards and requirements set forth by the Fair Work Act 2009, particularly in terms of the agreement's fairness, the process by which it was negotiated, and its compliance with the statutory provisions.

The Commission examined the fairness of the terms and conditions outlined in the agreement, ensuring they did not disadvantage employees unduly. It also scrutinised the negotiation process to confirm that it was conducted in good faith and that both parties had an opportunity to participate meaningfully. Additionally, the court assessed the agreement against statutory criteria, verifying that it adhered to all relevant legislative requirements, including those related to minimum entitlements and the procedural fairness of the agreement's creation.

After careful deliberation, the Fair Work Commission determined that the enterprise agreement was fair and appropriate for approval. The court found that the agreement met the necessary standards of fairness and had been negotiated in good faith. It also confirmed that the agreement complied with all statutory requirements. Consequently, the Commission approved the DM & FL Baldi Pty Ltd T/A Statewide Panels and the Construction, Forestry and Maritime Employees Union (Victorian Construction and General Division) Subcontractors Precast Panel Enterprise Agreement 2024-2027.

The final orders included the approval of the enterprise agreement, which would now be binding on the parties and their employees, effective from the date of approval. The Commission's decision provided clarity and certainty for both the employer and the union, ensuring that the terms of the agreement would govern their industrial relations moving forward.

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