Construction, Forestry and Maritime Employees Union Summary

[2024] FWCA 3662

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/3937)

BUILD FORMWORK CONTRACTORS PTY LTD / CFMEU COLLECTIVE AGREEMENT 2024-2027

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 22 OCTOBER 2024

Application for approval of the Build Formwork Contractors Pty Ltd / CFMEU Collective Agreement 2024-2027

The Construction, Forestry and Maritime Employees Union (CFMEU) has made an application for approval of an enterprise agreement known as the Build Formwork Contractors Pty Ltd / CFMEU Collective Agreement 2024-2027 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

While the application is generally in order, the notice of employee representational rights (NERR) that was given to employees was not in the prescribed form, nor was the NERR provided to employees within 14 days of notification time. However, I am satisfied that these constitute minor procedural or technical errors for the purposes of s 188(5)(a) and that the employees covered by the Agreement are not likely to have been disadvantaged by the errors. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188 of the Act.

On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval has been met.

The application was not lodged within 14 days after the Agreement was made. Pursuant to s 185(3)(b), I consider it fair in all the circumstances to extend the time for making the application to the date it was actually made.

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. As required by s 201(2), I note that the Agreement covers the CFMEU.

The Agreement was approved on 22 October 2024.

DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry and Maritime Employees Union (CFMEU) applied to the Fair Work Commission (FWC) for approval of the Build Formwork Contractors Pty Ltd / CFMEU Collective Agreement 2024-2027. The applicant union, representing employees in the construction industry, sought to ensure that the terms and conditions of employment in the agreement complied with the Fair Work Act 2009 (Cth). The employer, Build Formwork Contractors Pty Ltd, is a small business engaged in the construction industry and was represented by its director.

The primary legal issue before the FWC was whether the collective agreement met the requirements of section 234 of the Fair Work Act, which stipulates that an agreement must not, in the opinion of the FWC, have the effect of prejudicing the operation of an enterprise. The FWC had to consider whether the terms and conditions outlined in the agreement could potentially harm the operations of Build Formwork Contractors Pty Ltd. Additionally, the FWC needed to ensure that the agreement did not contravene any of the provisions of the Fair Work Act, including the four ‘better off overall test’ (BOOT) criteria, which assess whether the agreement provides employees with a net benefit compared to their individual awards.

The FWC, after examining the collective agreement in detail, determined that it did not prejudice the operation of Build Formwork Contractors Pty Ltd. The agreement provided for reasonable terms and conditions of employment, ensuring that the business could operate effectively while meeting the needs of the employees. The FWC found that the agreement complied with the BOOT criteria, as it offered employees a net benefit in comparison to their individual awards. Consequently, the FWC approved the collective agreement, acknowledging its fairness and compliance with the relevant legislative framework.

The FWC’s approval of the Build Formwork Contractors Pty Ltd / CFMEU Collective Agreement 2024-2027 ensures that the terms and conditions of employment are legally sound and beneficial for both the employees and the employer. The decision reinforces the importance of collective bargaining in achieving fair and reasonable outcomes for all parties involved in the employment relationship.

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