Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 305

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/150)

STH PILING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Piling Enterprise Agreement 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 2 FEBRUARY 2022

Application for approval of the STH PILING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Piling Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the STH PILING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Piling 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.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 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 9 February 2022. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involved an application for the approval of the Subcontractors Piling Enterprise Agreement 2020-2023 between STH Piling Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The application was heard in the Fair Work Commission. The nature of the dispute centred on whether the agreement met the criteria for approval under the Fair Work Act 2009, specifically focusing on whether it provided for fair and reasonable terms and conditions.

The primary legal issues before the court were whether the agreement was genuinely negotiated and provided for terms and conditions that were fair and reasonable. The court had to consider various aspects of the agreement, including the parties' bargaining positions, the process of negotiation, and the substantive terms and conditions outlined in the agreement. Additionally, the court needed to determine whether the agreement complied with the provisions of the Fair Work Act, particularly in relation to minimum entitlements and dispute resolution mechanisms.

The court found that the agreement was genuinely negotiated between the parties and that it contained terms and conditions that were fair and reasonable. The court considered the evidence provided by both parties, including the negotiation process and the context in which the agreement was formed. The court was satisfied that the agreement provided for fair and reasonable terms and conditions, taking into account the industry context and the bargaining positions of the parties. The court also found that the agreement complied with the statutory minimum entitlements and provided for an appropriate dispute resolution mechanism.

As a result of the court's findings, the application for approval of the Subcontractors Piling Enterprise Agreement 2020-2023 was approved. The agreement was deemed to be a genuine enterprise agreement that provided for fair and reasonable terms and conditions for the employees covered by the agreement. The final orders of the court included the approval of the agreement, which would be registered with the Fair Work Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established