Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 6073

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/7508)

PARKFORM CONSTRUCTIONS (VIC) PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS FORMWORK ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 30 SEPTEMBER 2021

Application for approval of the PARKFORM CONSTRUCTIONS (VIC) PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023

[1] An application has been made for approval of an enterprise agreement known as the PARKFORM CONSTRUCTIONS (VIC) PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork 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 7 October 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 before the Fair Work Commission involved an application for the approval of the PARKFORM CONSTRUCTIONS (VIC) PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023. The agreement in question was proposed by PARKFORM, a company in the construction industry, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The union sought to formalise terms and conditions for employees engaged as subcontractors in the formwork sector across Victoria.

The primary legal issues before the Commission were whether the proposed enterprise agreement complied with the relevant provisions of the Fair Work Act 2009. The Commission had to determine if the agreement was sufficiently free from any prohibited content, if it met the requirements for being a "better off overall test" (BOOT), and if it complied with other statutory requirements such as notice provisions and proper consultation processes.

The Commission examined the agreement clause by clause to ensure it met all statutory requirements. It considered the balance of the agreement in terms of the BOOT, ensuring that the proposed terms were at least as favourable to the employees as their existing conditions. The Commission also assessed the consultation process undertaken by the parties and verified that the agreement did not contain any content that was prohibited under the Fair Work Act. After thorough scrutiny, the Commission found that the agreement met all the necessary statutory requirements and was approved, reflecting a fair balance of interests between the employer and the employees.

The Fair Work Commission approved the PARKFORM CONSTRUCTIONS (VIC) PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023, recognising its compliance with all relevant legal standards. The approval was based on the findings that the agreement was free from prohibited content, met the better off overall test, and adhered to the notice and consultation provisions 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