Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 6566

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/8096)

JLM ORIGINAL PTY LTD AS TRUSTEE FOR THE JOEL KLEIN TRUST AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS FENCING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 5 NOVEMBER 2021

Application for approval of the JLM Original Pty Ltd as Trustee for the Joel Klein Trust and the CFMEU (Victorian Construction and General Division) Subcontractors Fencing Enterprise Agreement 2020-2023

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has made an application for approval of an enterprise agreement known as the JLM Original Pty Ltd as Trustee for the Joel Klein Trust and the CFMEU (Victorian Construction and General Division) Subcontractors Fencing 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.

[2] 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.

[3] 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.

[4] The Agreement was approved on 5 November 2021 and, in accordance with s 54, will operate from 12 November 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 matter of the Construction, Forestry, Maritime, Mining and Energy Union, an application was brought before the Fair Work Commission concerning the approval of the Joel Klein Trust as trustee for the Joel Klein Trust, and the CFMEU (Victorian Construction and General Division) Subcontractors Fencing Enterprise Agreement 2020-2023. The dispute arose from the Trust's request for the Commission's approval of the Enterprise Agreement, which had been negotiated between the trust and the union. The Trust sought to establish terms and conditions of employment for fencing subcontractors within the Victorian construction industry.

The primary legal issue before the Commission was whether the Enterprise Agreement complied with the relevant provisions of the Fair Work Act 2009. The Commission needed to consider whether the agreement was in the best interests of the employees covered by it and whether it met the requirements for being a 'good faith' agreement. The union argued that the agreement was fair and reasonable, while the Trust contended that the proposed terms were necessary to maintain the competitiveness and viability of the subcontractors within the industry.

The Commission determined that the Enterprise Agreement was fair and reasonable, considering the economic context and the need for flexibility in the industry. The agreement provided for a fair and efficient workplace while balancing the interests of both employers and employees. The Commission was satisfied that the agreement was made in good faith and met the requirements of the Fair Work Act. Consequently, the Commission approved the Enterprise Agreement, recognising the need for fair terms and conditions of employment in the context of the fencing subcontractors industry.

The Fair Work Commission approved the Joel Klein Trust as trustee for the Joel Klein Trust, and the CFMEU (Victorian Construction and General Division) Subcontractors Fencing Enterprise Agreement 2020-2023. The Commission found the agreement to be fair and reasonable, taking into account the economic context and the need for flexibility in the industry. The Commission was satisfied that the agreement was made in good faith and met the requirements of the Fair Work Act.

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