Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 6499

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/7933)

ACE CIVIL SERVICES PTY. LTD. AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) CIVIL AND INFRASTRUCTURE ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 1 NOVEMBER 2021

Application for approval of the ACE CIVIL SERVICES PTY. LTD. and the CFMEU (Victorian Construction and General Division) Civil and Infrastructure Enterprise Agreement 2020-2023

[1] An application has been made for approval of an enterprise agreement known as the ACE CIVIL SERVICES PTY. LTD. and the CFMEU (Victorian Construction and General Division) 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] 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.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 8 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

In this case, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought approval of the ACE Civil Services Pty. Ltd. and the CFMEU (Victorian Construction and General Division) Civil and Infrastructure Enterprise Agreement 2020-2023. The applicant, CFMEU, is a registered trade union and the respondent, ACE Civil Services Pty. Ltd., is an employer within the scope of the Fair Work Act 2009. The dispute centred on whether the proposed enterprise agreement complied with the legal requirements for approval by the Fair Work Commission.

The primary legal issue was whether the enterprise agreement met the criteria under section 231 of the Fair Work Act, which mandates that an agreement be in the public interest and not provide for terms and conditions detrimental to employees. The court needed to determine if the agreement's provisions aligned with the legislative standards for fairness and whether it appropriately balanced the interests of employees, employers, and the public.

The Fair Work Commission found that the agreement did not fully meet the requirements for approval. The court identified several problematic provisions that failed to adequately protect employees, particularly concerning penalty rates and the ability to make out-of-hours work compulsory. The court emphasised that the agreement needed to ensure fair and reasonable terms that did not unfairly burden employees. Ultimately, the commission decided that the agreement did not sufficiently address these concerns, leading to the rejection of the application for approval.

In conclusion, the Fair Work Commission denied approval of the enterprise agreement, highlighting the need for amendments to better align with legislative standards and protect employee interests. The decision underscored the importance of a balanced approach in enterprise agreements, ensuring they serve the public interest and do not disadvantage employees.

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