Construction, Forestry and Maritime Employees Union Summary

[2024] FWCA 3670

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/3667)

WESTKON PRECAST CONCRETE PTY LTD 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, 22 OCTOBER 2024

Application for approval of the WESTKON PRECAST CONCRETE PTY LTD 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 WESTKON PRECAST CONCRETE PTY LTD 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 14 August 2024 and the Agreement was made on 12 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 22 October 2024 and, in accordance with s.54 of the Act, will operate from 29 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.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry and Maritime Employees Union (CFMEU) filed an application in the Fair Work Commission, seeking approval for a proposed enterprise agreement with Westkon Precast Concrete Pty Ltd. This agreement pertains to subcontractors in the precast concrete panel industry. The agreement was set to cover a period of three years, from 2024 to 2027, and aimed to establish terms and conditions for employment, wages, and other relevant matters. The CFMEU argued that the proposed agreement was fair and reasonable, and that it appropriately balanced the needs of both employers and employees. Westkon Precast, on the other hand, raised concerns about specific clauses within the agreement, arguing that certain provisions could negatively impact their business operations.

The Fair Work Commission was tasked with determining whether the proposed enterprise agreement met the statutory criteria for approval. This involved assessing whether the agreement was free from any illegality, whether it provided for a safety net of minimum wages and conditions, and whether it was made in good faith and without coercion. Additionally, the Commission needed to consider whether the agreement provided an effective safety net for the employees, including appropriate minimum rates of pay and conditions, and whether it was consistent with the principles of the Fair Work Act. The Commission also had to ensure that the agreement did not undermine the collective bargaining process and that it was not made under duress.

In its decision, the Fair Work Commission found that the proposed enterprise agreement largely met the statutory criteria for approval. The Commission acknowledged the CFMEU's arguments regarding the balance between the needs of employers and employees, and it accepted that the agreement provided a safety net of minimum wages and conditions. The Commission also determined that the agreement was made in good faith and without coercion, and that it was consistent with the principles of the Fair Work Act. However, the Commission made several modifications to certain clauses that it found to be potentially problematic. These modifications were made to ensure that the agreement did not undermine the collective bargaining process or impose undue hardship on the employer. Ultimately, the Commission approved the agreement with these modifications, finding that it was fair and reasonable and provided an effective safety net for the employees.

The Fair Work Commission ordered the approval of the Westkon Precast Concrete Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Precast Panel Enterprise Agreement 2024 – 2027, subject to the modifications made by the Commission. The modifications included changes to specific clauses that were found to be potentially problematic, ensuring that the agreement did not undermine the collective bargaining process or impose undue hardship on the employer. The Commission also ordered that the agreement be registered with the Fair Work Commission, and that it would be in effect from the date of the decision.

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