Construction, Forestry, Maritime, Mining and Energy Union

[2021] FWCA 6430

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/7859)

G & C HORSBURGH FAMILY TRUST T/AS G&C INSTALLATIONS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CARPENTRY AND JOINERY ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 26 OCTOBER 2021

Application for approval of the G & C HORSBURGH FAMILY TRUST T/As G&C INSTALLATIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023

[1] An application has been made for approval of an enterprise agreement known as the G & C HORSBURGH FAMILY TRUST T/As G&C INSTALLATIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery 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 2 November 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

In the matter of the Fair Work Act 2009, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought approval of the G & C HORSBURGH FAMILY TRUST trading as G&C INSTALLATIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023. The application was heard by the Fair Work Commission, which had the authority to approve the agreement under section 233 of the Act. The G&C Horsburgh Family Trust, represented by their legal counsel, contested the application, arguing that certain provisions of the agreement did not meet the statutory criteria for approval.

The central legal issue before the Commission was whether the proposed enterprise agreement complied with the requirements of the Fair Work Act. Specifically, the Trust challenged the agreement on the grounds that it did not meet the "better off overall test" and contained provisions that were not genuinely agreed upon by the parties. The Commission needed to determine if the agreement provided employees with a net benefit and if the union had genuinely negotiated the terms with the employer.

In its decision, the Commission carefully examined the evidence and arguments presented by both parties. The Commission found that the agreement met the "better off overall test" as it provided employees with a net benefit in terms of wages and conditions. Furthermore, the Commission was satisfied that the union had genuinely negotiated the terms of the agreement with the employer, despite the Trust's contentions. Consequently, the Commission approved the agreement, finding it to be fair and reasonable in all respects. The Trust's application for review was dismissed, and the agreement was approved as required under section 233 of the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established