Construction, Forestry, Maritime, Mining and Energy Union

[2021] FWCA 6980

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/8517)

PAUL CAELLI 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, 3 DECEMBER 2021

Application for approval of the PAUL CAELLI FORMWORK 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 PAUL CAELLI 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.

[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 10 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 applicants in this case were the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Paul Caelli Formwork Pty Ltd, who sought approval of their Enterprise Agreement from 2020 to 2023. The Fair Work Commission (FWC) was the court that heard the application. The primary issue before the court was whether the terms of the proposed Enterprise Agreement complied with the relevant legislative requirements under the Fair Work Act 2009. This involved assessing whether the agreement provided for fair and reasonable terms and conditions, and whether it complied with the "better off overall test" which ensures that employees are not worse off under the agreement than they would be under the applicable award or national employment standards.

The FWC considered various factors in its analysis, including the nature of the industry, the bargaining positions of the parties, and the economic context in which the agreement was negotiated. The court also examined the provisions of the agreement to ensure they aligned with the principles of the Fair Work Act, such as fairness and reasonableness, and whether they met the criteria of the "better off overall test." The FWC concluded that the proposed agreement met these requirements, noting the context of the negotiations, the inclusion of protections for employees, and the balance of benefits and detriments. The court found that the agreement was fair and reasonable, and that it complied with the necessary statutory standards.

The FWC approved the Paul Caelli Formwork Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023. This decision was based on the comprehensive review of the agreement's terms, the fairness of the provisions, and the compliance with the legislative framework. The approval signified that the agreement met the necessary legal standards and would provide for the fair treatment of employees within the specified period.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established