Construction, Forestry, Maritime, Mining and Energy Union

[2021] FWCA 6605

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/8097)

BURCON (VIC) PTY. LTD. AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CIVIL AND INFRASTRUCTURE ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 9 NOVEMBER 2021

Application for approval of the BURCON (VIC) PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Civil and Infrastructure Enterprise Agreement 2020-2023

[1] An application has been made for approval of an enterprise agreement known as the BURCON (VIC) PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Civil and Infrastructure 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 16 November 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 involved an application for approval of the subcontractor's enterprise agreement between Burcon (Vic) Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The Fair Work Commission was the court in this instance. The crux of the matter was whether the agreement complied with the relevant legislative framework, specifically the Fair Work Act 2009, and whether it adhered to the principles of good faith bargaining and procedural fairness.

The primary legal issues were whether the agreement met the statutory requirements under the Fair Work Act, and whether the process through which the agreement was formed was fair and in good faith. The court needed to assess if the union and the employer had engaged in genuine negotiations, and whether the terms of the agreement were fair and reasonable.

The Fair Work Commission concluded that the agreement was fair and reasonable and complied with the statutory requirements. The court found that both parties had engaged in genuine negotiations, and the process was conducted in good faith. The terms of the agreement were also deemed to be fair and reasonable, taking into account the specific needs of the subcontractors and the industry. Therefore, the court approved the subcontractor's enterprise agreement.

The Fair Work Commission's final order was the approval of the Burcon (Vic) Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Civil and Infrastructure Enterprise Agreement 2020-2023. This decision ensures that the agreement will govern the employment conditions for subcontractors within the specified industry, and provides a framework for future negotiations between the parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established