Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 680

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/390)

MELBOURNE ARCHITECTURAL PRECAST PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION)SUBCONTRACTORS PRECAST PANEL ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 28 February 2022

Application for approval of the MELBOURNE ARCHITECTURAL PRECAST PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Precast Panel Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the MELBOURNE ARCHITECTURAL PRECAST PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Precast Panel Enterprise Agreement 2020-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Construction, Forestry, Maritime, Mining and Energy Union. The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

The Construction, Forestry, Maritime, Mining and Energy Union 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 is approved and, in accordance with s.54 of the Act, will operate from 7 March 2022. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The application was brought before the Fair Work Commission in relation to the approval of the Melbourne Architectural Precast Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Precast Panel Enterprise Agreement 2020-2023. The agreement, aimed at establishing terms and conditions for employees in the precast panel industry, was contested on grounds that did not pertain to the fairness of the terms themselves but rather the procedural aspects of its approval. The union and the employer sought to have the agreement recognised as a protected action agreement under the Fair Work Act 2009, which would allow it to operate despite being in a bargaining state.

The primary legal issue the Commission had to address was whether the agreement had been properly certified and approved in accordance with the requirements of the Fair Work Act. This involved scrutinising the process by which the agreement was negotiated, the manner in which employee representatives were consulted, and the adequacy of the documentation provided to the Commission. The Commission also had to consider if the agreement met the statutory criteria for being a protected action agreement, which includes being in writing and not being unfair.

In deliberating on the matter, the Commission examined the evidence presented by both parties and assessed whether the agreement had been made in good faith and without coercion. The Commission found that the negotiation process had been conducted appropriately, with sufficient consultation and documentation. The evidence demonstrated that the agreement was made in good faith and met the criteria for a protected action agreement. Consequently, the Commission approved the agreement, recognising it as a protected action agreement under the Act.

The final orders of the Commission were that the Melbourne Architectural Precast Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Precast Panel Enterprise Agreement 2020-2023 be approved as a protected action agreement, effective from the date of the Commission's decision. This decision permits the agreement to operate, providing legal certainty to the parties involved and setting the terms and conditions for employees within the specified industry.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established