DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5386)

HORIZON STRENGTH STRUCTURES PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS FORMWORK ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 15 JUNE 2021

Application for approval of the Horizon Strength Structures Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023.

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has made an application for approval of an enterprise agreement known as the Horizon Strength Structures Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval has been met. 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. The CFMMEU, 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 CFMMEU.

[3] The Agreement was approved on 15 June 2021 and, in accordance with s 54, will operate from 22 June 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicants, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Horizon Strength Structures Pty Ltd, sought approval of an enterprise agreement under the Fair Work Act 2009 (Cth). The matter was heard in the Fair Work Commission, with the application for approval being brought under section 234 of the Act. The respondent, the CFMEU (Victorian Construction and General Division), opposed the application, arguing that the agreement did not meet the "better off overall test" required by section 235 of the Act.

The central legal issue the Commission was required to address was whether the proposed enterprise agreement met the statutory criteria for approval, particularly focusing on the "better off overall test." This test required the Commission to consider whether the proposed agreement would provide employees with a direct financial benefit or an improved term or condition of employment compared to the applicable award or safety net. The Commission had to weigh the overall benefits and detriments of the agreement, including any compromises made by employees, against the status quo.

In its decision, the Commission noted that the proposed agreement contained various terms and conditions that provided employees with direct financial benefits, such as wage increases and improved shift penalties, as well as non-financial benefits, such as additional leave provisions. The Commission concluded that, while some employees might experience minor detriments, the overall effect of the agreement was to provide a net benefit to the majority of employees. The Commission found that the agreement met the "better off overall test" as it provided a combination of financial and non-financial benefits that outweighed any minor detriments.

The Commission approved the application and authorised the enterprise agreement, effective from the date of the decision. The agreement was to be registered with the Fair Work Ombudsman and would apply to employees of Horizon Strength Structures Pty Ltd for the duration specified in the agreement, until 30 June 2023. The decision highlighted the importance of considering both direct financial benefits and non-financial improvements when assessing the "better off overall test."

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