Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 280

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/151)

CANTERBURY FORMWORK PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 1 FEBRUARY 2022

Application for approval of the CANTERBURY FORMWORK PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023

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

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

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 8 February 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 applicant, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), sought approval of a formwork enterprise agreement between the Canterbury Formwork Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023. The application was made under the Fair Work Act 2009. The respondent, the Australian Building and Construction Commission (ABCC), opposed the application on the basis that the agreement did not satisfy the requirements of the Act.

The central issue before the court was whether the agreement complied with the criteria set out in the Fair Work Act 2009, particularly focusing on the application of the better-off-overall test and the provision of procedural fairness to the employees. The court had to determine if the agreement was made in good faith and if it provided employees with a better overall deal than they would have under the relevant award or safety net award.

The court held that the agreement did satisfy the requirements of the Act. It determined that the agreement was made in good faith and that the employees would be better off overall under the terms of the agreement. The court also found that procedural fairness was observed in the process of making the agreement. Consequently, the application for approval was granted.

The court ordered that the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023 be approved as a registered agreement under the Fair Work Act 2009. The agreement was to be registered from the date of the application, effectively providing legal recognition and enforceability to the terms negotiated between the parties.

Construction, Forestry, Maritime, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established