Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 6001

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/7438)

SMITH & OSBORNE (VIC) PTY LTD T/AS MEGASAW AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONCRETE SAWING AND DRILLING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 27 SEPTEMBER 2021

Application for approval of the SMITH & OSBORNE (VIC) PTY LTD T/As MEGASAW and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Sawing and Drilling Enterprise Agreement 2020-2023

[1] An application has been made for approval of an enterprise agreement known as the SMITH & OSBORNE (VIC) PTY LTD T/As MEGASAW and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Sawing and Drilling 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 4 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

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union applied for the approval of a proposed enterprise agreement. The agreement in question was between Smith & Osborne (Vic) Pty Ltd trading as Megasaw and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Sawing and Drilling Enterprise Agreement 2020-2023. The Commission was required to determine whether the proposed agreement met the requirements for registration under the Fair Work Act 2009.

The central legal issue was whether the proposed agreement was a genuine enterprise agreement, as defined in the Fair Work Act, and if it complied with the various statutory provisions governing enterprise agreements. This included examining the bargaining process, the scope of the agreement, and whether it contained mandatory terms as required by the Act. Additionally, the Commission needed to consider if the agreement met the "better off overall test" and was fair and reasonable.

The Commission found that the proposed agreement was indeed a genuine enterprise agreement. The bargaining process was deemed to be conducted in good faith and the agreement covered a defined enterprise. The mandatory terms were included and the agreement was found to be fair and reasonable. The "better off overall test" was also satisfied, as the agreement provided benefits to the employees that outweighed any potential detriments. Consequently, the Commission approved the proposed agreement for registration.

The Fair Work Commission approved the proposed enterprise agreement between Smith & Osborne (Vic) Pty Ltd trading as Megasaw and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Sawing and Drilling Enterprise Agreement 2020-2023. The agreement is now registered and will govern the employment conditions of the employees within the specified enterprise for the period of 2020-2023.

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