Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 6894

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2021/8457)

Toorak Formwork Victoria Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 30 NOVEMBER 2021

Application for approval of the Toorak Formwork Victoria Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023

The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has made an application for approval of an enterprise agreement known as the Toorak Formwork Victoria Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval has 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 CFMMEU, 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) and based on its declaration, I note that the Agreement covers the CFMMEU.

The Agreement was approved on 30 November 2021 and, in accordance with s 54, will operate from 7 December 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) applied for the approval of the Toorak Formwork Victoria Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023. The primary issue at hand was whether the agreement met the requirements of the Fair Work Act 2009 and whether it was made in good faith. The CFMEU argued that the agreement was fair and reasonable, while Toorak Formwork Pty Ltd contended that certain provisions were unreasonable and had not been made in good faith.

The Commission examined the provisions of the agreement, particularly those concerning shift patterns, rosters, and penalty rates. The CFMEU argued that the provisions were necessary to accommodate the specific nature of the work and the workforce. The Commission acknowledged that the agreement contained provisions that were less favourable to employees than the relevant awards but found that these provisions were necessary to address the unique circumstances of the industry. The Commission also found that the agreement was made in good faith, as it was the result of genuine negotiations between the parties.

The Commission approved the agreement, noting that while some provisions were less favourable to employees, the overall agreement was fair and reasonable. The Commission found that the agreement met the requirements of the Fair Work Act 2009 and was made in good faith. The orders made by the Commission included the approval of the Toorak Formwork Victoria Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023.

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