Construction, Forestry, Maritime, Mining and Energy Union

[2021] FWCA 7116

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/8672)

SUAS CIVIL PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS FORMWORK ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 14 DECEMBER 2021

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

[1] An application has been made for approval of an enterprise agreement known as the SUAS CIVIL 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.

[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 21 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

In this case, the applicants, SUAS CIVIL PTY LTD and the CFMEU (Victorian Construction and General Division), sought approval for a Subcontractors Formwork Enterprise Agreement 2020-2023. The dispute was heard in the Fair Work Commission. The applicants sought to have the agreement approved as a safety net agreement, with the Fair Work Commission exercising its discretion under section 235 of the Fair Work Act 2009 to approve the agreement despite some provisions not meeting the prescribed criteria for approval. The CFMEU (Victorian Construction and General Division) argued that the agreement was in the interests of the employees covered by the agreement and that the provisions that did not meet the prescribed criteria were justified by the need to ensure a safe working environment.

The key legal issues before the Commission were whether the agreement was in the interests of the employees and whether the provisions that did not meet the prescribed criteria were justified by a legitimate workplace reason. The Commission considered the evidence and submissions from both parties, as well as the relevant legislation and case law. The Commission found that the agreement was in the interests of the employees and that the provisions that did not meet the prescribed criteria were justified by a legitimate workplace reason. The Commission exercised its discretion under section 235 of the Fair Work Act 2009 to approve the agreement.

The Fair Work Commission approved the Subcontractors Formwork Enterprise Agreement 2020-2023 as a safety net agreement. The Commission found that the agreement was in the interests of the employees and that the provisions that did not meet the prescribed criteria were justified by a legitimate workplace reason. The Commission considered the need to ensure a safe working environment and the potential benefits of the agreement to the employees. The Commission also noted that the agreement provided for a higher rate of pay for employees who worked on public holidays and that this provision was in the interests of the employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established