Construction, Forestry, Maritime, Mining and Energy Union

[2021] FWCA 5932

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/7382)

CLAD & CO COMMERCIAL PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS REMEDIAL CONCRETE AND ACCESS FLOORING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 23 SEPTEMBER 2021

Application for approval of the CLAD & CO COMMERCIAL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Remedial Concrete and Access Flooring Enterprise Agreement 2020-2023

[1] An application has been made for approval of an enterprise agreement known as the CLAD & CO COMMERCIAL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Remedial Concrete and Access Flooring 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, 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 by CLAD & CO COMMERCIAL PTY LTD for approval of the CFMEU (Victorian Construction and General Division) Subcontractors Remedial Concrete and Access Flooring Enterprise Agreement 2020-2023. The matter was heard in the Fair Work Commission, which was tasked with determining whether the agreement met the requirements under the Fair Work Act 2009 for being made and approved.

The legal issues before the Commission included whether the agreement had been genuinely agreed upon by the parties, whether it was sufficiently in the interests of the employees, and if it complied with all relevant provisions of the Act. Key arguments revolved around the procedural fairness of the bargaining process, the fairness of the terms and conditions, and the extent to which the agreement adhered to the statutory criteria for approval.

The Commission found that the agreement had been genuinely negotiated and was in the interests of the employees. It held that the bargaining process was procedurally fair and that the terms of the agreement were fair. The Commission also concluded that the agreement met all statutory requirements for approval under the Fair Work Act. Consequently, the application for approval was successful.

The Fair Work Commission approved the CFMEU (Victorian Construction and General Division) Subcontractors Remedial Concrete and Access Flooring Enterprise Agreement 2020-2023, effective from the date of the decision. This decision set a precedent for similar agreements in the industry and provided clarity on the application of the Fair Work Act to enterprise agreements involving subcontractors.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established