DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5828)

NU-LITE BALUSTRADING AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CARPENTRY AND JOINERY ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 7 JULY 2021

Application for approval of the NU-LITE BALUSTRADING and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the NU-LITE BALUSTRADING and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery 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 14 July 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 sought approval for the NU-LITE BALUSTRADING and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023. The applicant union argued that the agreement was made in good faith and met the requirements of the Fair Work Act 2009. The dispute arose because the Australian Building and Construction Commission had concerns about the agreement, specifically the potential for it to facilitate sham contracting and the payment of unfair wages.

The central legal issues the court had to resolve were whether the agreement was made in good faith, as required by section 233 of the Fair Work Act, and whether it complied with the Act's provisions regarding fair work. Additionally, the court needed to determine if the agreement contained terms that could facilitate sham contracting or the payment of unfair wages, which would render it unlawful.

The Fair Work Commission found that the agreement was made in good faith and contained provisions that ensured it would not be used to facilitate sham contracting or unfair wages. The court emphasised that the agreement included mechanisms for monitoring compliance and provided avenues for dispute resolution. It concluded that the agreement met the statutory requirements and was therefore approved. The decision was made on the basis that the agreement contained adequate safeguards against the misuse of the agreement for unfair labour practices.

The Fair Work Commission approved the enterprise agreement, finding it met the statutory requirements and was made in good faith. The union was authorised to register the agreement, and it came into effect as per the terms outlined.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established