Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 6490

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/7884)

ACROW FORMWORK & SCAFFOLDING PTY LTD/CFMEU YARD ENTERPRISE AGREEMENT (NSW), 2020

Building, metal and civil construction industries
COMMISSIONER MIRABELLA	MELBOURNE, 1 NOVEMBER 2021

Application for approval of the Acrow Formwork & Scaffolding Pty Ltd/CFMEU Yard Enterprise Agreement (NSW), 2020

[1] The Construction, Forestry, Maritime, Mining and Energy Union (the CFMEU) has made an application for approval of an enterprise agreement known as the Acrow Formwork & Scaffolding Pty Ltd/CFMEU Yard Enterprise Agreement (NSW), 2020 (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 sections 186, 187 and 188, as are relevant to this application for approval, have been met.

[3] The CFMEU, 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 the declaration provided by the organisation), I note that the Agreement covers the organisation.

[4] The Agreement was approved on 1 November 2021 and, in accordance with s. 54, will operate from 8 November 2021. The nominal expiry date of the Agreement is 31 October 2023.

COMMISSIONER

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CaseChat Overview and Summary

The case involved an application by Acrow Formwork & Scaffolding Pty Ltd for the approval of an enterprise agreement with the Construction, Forestry, Maritime, Mining and Energy Union. The dispute was heard in the Fair Work Commission. The primary legal issue before the Commission was whether the enterprise agreement met the requirements of the Fair Work Act 2009 and could be approved as a valid and legally binding agreement. This involved examining whether the agreement was genuinely an enterprise agreement, whether it had been negotiated in good faith, and whether it met the "better off overall test".

The Commission considered various aspects of the agreement, including the negotiation process, the terms and conditions, and the impact on the employees. It was noted that the agreement had been negotiated between the parties and included terms on wages, hours of work, and other conditions of employment. The Commission examined whether the agreement provided employees with a better overall outcome than the applicable award or registered agreement. The Fair Work Commission approved the enterprise agreement, finding that it was genuinely an enterprise agreement, had been negotiated in good faith, and met the better off overall test. The Commission was satisfied that the agreement provided employees with a fair and reasonable outcome, taking into account the specific circumstances of the industry and the bargaining positions of the parties.

As a result of the decision, the Acrow Formwork & Scaffolding Pty Ltd/CFMEU Yard Enterprise Agreement (NSW), 2020, was approved and registered by the Fair Work Commission. The agreement now serves as the binding contract between the employer and the employees covered by the agreement, replacing any applicable award or registered agreement. The decision reinforces the importance of good faith negotiations and the need for enterprise agreements to provide a better overall outcome for 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