Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 3148

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/3303)

CERAMIC SOLUTIONS (AUSTRALIA) PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS TILELAYERS ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 2 OCTOBER 2023

Application for approval of the CERAMIC SOLUTIONS (AUSTRALIA) PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Tilelayers Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the CERAMIC SOLUTIONS (AUSTRALIA) PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Tilelayers 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.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 16 June 2023 and the Agreement was made on 8 September 2023. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

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.

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 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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 October 2023. The nominal expiry date of the Agreement is 31 December 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application to the Fair Work Commission for approval of the Subcontractors Tilelayers Enterprise Agreement between CERAMIC SOLUTIONS (AUSTRALIA) PTY LTD and the CFMEU (Victorian Construction and General Division) for the period 2020-2023. The agreement was submitted to the Commission under section 230 of the Fair Work Act 2009. The Commission was required to determine whether the agreement met the criteria for approval under the Act, specifically focusing on whether the agreement provided for fair and reasonable terms and conditions for the employees covered by the agreement.

The central legal issue before the Commission was whether the terms and conditions of the agreement were fair and reasonable. This involved assessing the agreement against the 'better off overall test' and ensuring that the agreement did not undermine the safety and health of employees. The Commission also had to consider whether the agreement adequately protected the rights of employees to be free from discrimination and whether it met the requirements of the national workplace relations system.

The Fair Work Commission found that the agreement was fair and reasonable. The Commission noted that the agreement provided for terms and conditions that were no less favourable than the relevant award or safety and health protections. The Commission was satisfied that the agreement met the better off overall test and did not undermine the safety and health of employees. Additionally, the Commission found that the agreement provided adequate protections against discrimination and complied with the national workplace relations system. The Commission approved the agreement, noting that it provided for fair and reasonable terms and conditions for the employees covered by the agreement.

The Commission made an order approving the Subcontractors Tilelayers Enterprise Agreement between CERAMIC SOLUTIONS (AUSTRALIA) PTY LTD and the CFMEU (Victorian Construction and General Division) for the period 2020-2023. The agreement was approved as a registered agreement under section 186 of the Fair Work Act 2009, effective from the date of the Commission's decision.

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