Construction, Forestry, Maritime, Mining and Energy Union

[2021] FWCA 5958

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/7345)

MCGAW FAMILY TRUST (THE TRUSTEE FOR) T/AS MCGAW CONSTRUCTIONS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS BRICK LAYING ENTERPRISE AGREEMENT 2020-2023

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

Application for approval of the MCGAW FAMILY TRUST (THE TRUSTEE FOR) T/As MCGAW CONSTRUCTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Brick Laying Enterprise Agreement 2020-2023

[1] An application has been made for approval of an enterprise agreement known as the MCGAW FAMILY TRUST (THE TRUSTEE FOR) T/As MCGAW CONSTRUCTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Brick Laying 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 matter involved an application by the MC Gaw Family Trust, trading as McGaw Constructions Pty Ltd, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) (Victorian Construction and General Division) to have their Subcontractors Brick Laying Enterprise Agreement 2020-2023 approved by the Fair Work Commission. The Fair Work Commission was the relevant court in this matter.

The primary legal issue before the Court was whether the terms of the agreement complied with the relevant provisions of the Fair Work Act 2009. The Fair Work Commission had to determine if the agreement was a "better off overall test" (BOOT) agreement, meaning that it provided a minimum of the national minimum wages and conditions, and was not worse than the applicable award or previous enterprise agreement. The Court also needed to consider if the agreement contained any provisions that were contrary to the public interest.

In determining the matter, the Fair Work Commission found that the agreement was a BOOT agreement and contained no provisions contrary to the public interest. The Court considered the nature of the industry and the specific roles of bricklayers, as well as the bargaining positions of the parties. The agreement provided for fair wages and conditions for bricklayers, taking into account the specific needs of the industry. The Court also noted that the agreement provided for dispute resolution mechanisms and allowed for flexibility in the workforce. Therefore, the Fair Work Commission approved the agreement.

The Fair Work Commission approved the Subcontractors Brick Laying Enterprise Agreement 2020-2023 between the MC Gaw Family Trust, trading as McGaw Constructions Pty Ltd, and the CFMEU (Victorian Construction and General Division).

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established