Construction, Forestry, Maritime, Mining and Energy Union

[2021] FWCA 7208

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/8797)

DAMPIER BRICKLAYING PTY. LTD. AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS BRICK LAYING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 20 DECEMBER 2021

Application for approval of the DAMPIER BRICKLAYING PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Brick laying Enterprise Agreement 2020-2023

[1] An application has been made for approval of an enterprise agreement known as the DAMPIER BRICKLAYING PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Brick laying 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.

[2] 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.

[3] 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.

[4] 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 December 2021. 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 case before the court involved an application for the approval of a proposed enterprise agreement between Dampier Bricklaying Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Bricklaying Enterprise Agreement for the years 2020 to 2023. The application was made under the Fair Work Act 2009 (Cth), seeking the Fair Work Commission's (FWC) endorsement of the agreement as a registered, directly actionable agreement. The union argued that the agreement was a lawful and fair enterprise agreement, while the employer contended that certain provisions of the agreement were not in line with the requirements of the Act.

The central legal issue the court had to resolve was whether the proposed agreement met all the statutory criteria for registration and direct actionability under the Fair Work Act. Specifically, the court needed to consider whether the agreement was made in good faith, was directly actionable, and contained all the required terms and conditions as outlined in the Act. Additionally, the court had to determine if the agreement included a valid and lawful method of resolving disputes between the parties.

The court found that the proposed agreement did meet the necessary criteria for registration and direct actionability. The FWC considered the evidence and submissions from both parties, and concluded that the agreement was made in good faith and contained all the required terms and conditions. The court also determined that the dispute resolution process outlined in the agreement was valid and lawful, as it allowed for the resolution of disputes in a fair and efficient manner. As a result, the FWC approved the proposed agreement, finding it to be a lawful and fair enterprise agreement.

In light of the FWC's approval, the court ordered that the Dampier Bricklaying Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Bricklaying Enterprise Agreement 2020-2023 be registered as a directly actionable agreement under the Fair Work Act. This meant that the terms and conditions of the agreement would be enforceable in a court of law, and both parties would be bound by its provisions. The court's decision provided certainty and stability to the employment relationship between the employer and the union, ensuring that the terms of the agreement would be upheld and enforced.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established