Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 5972

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/7346)

ELITE CONCRETE DRILLING & SAWING PTY. LTD. 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, 23 SEPTEMBER 2021

Application for approval of the ELITE CONCRETE DRILLING & SAWING PTY. LTD. 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 ELITE CONCRETE DRILLING & SAWING PTY. LTD. 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 30 September 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 involved an application for the approval of a proposed enterprise agreement between ELITE CONCRETE DRILLING & SAWING PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Sawing and Drilling Enterprise Agreement 2020-2023. The application was made to the Fair Work Commission, which is Australia's national workplace relations tribunal. The dispute centred on whether the agreement met the criteria set out under the Fair Work Act 2009 for an enterprise agreement to be approved.

The primary legal issues before the court were whether the agreement was a genuine enterprise agreement, whether it was made in good faith, and whether it contained the necessary minimum terms and conditions as required by the Fair Work Act. The court had to consider whether the agreement was negotiated between the employer and the relevant union, and if it covered the appropriate employees. Additionally, the court examined if the agreement complied with the "better off overall test," which requires that the agreement must not reduce the overall pay and conditions of employees compared to the applicable award or previous agreement.

The Fair Work Commission found that the proposed agreement was indeed a genuine enterprise agreement, negotiated in good faith, and met all the necessary criteria under the Fair Work Act. The agreement was comprehensive, covering all relevant employees, and contained all the required minimum terms and conditions. The Commission also determined that the agreement passed the "better off overall test," ensuring that employees would not be worse off financially or in terms of conditions. As a result, the Fair Work Commission approved the agreement, confirming its validity and enforceability.

The final orders of the Commission included the approval of the ELITE CONCRETE DRILLING & SAWING PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Sawing and Drilling Enterprise Agreement 2020-2023, effective from the date of approval. The agreement was to be registered with the Fair Work Commission, and all relevant parties were directed to comply with its terms. The decision underscores the importance of ensuring that enterprise agreements meet all legal requirements to protect the interests of both employers and 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