DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5173)

KWILL CONSTRUCTIONS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CARPENTRY AND JOINERY ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 21 MAY 2021

Application for approval of the Kwill Constructions Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023.

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has made application for approval of an enterprise agreement known as the Kwill Constructions Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery 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.

[3] 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.

[4] The Agreement was approved on 21 May 2021 and, in accordance with s 54, will operate from 28 May 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 matter before the Fair Work Commission was an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for approval of the Kwill Constructions Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023. This industrial dispute involved the interpretation and application of the Fair Work Act 2009 and related regulations, specifically regarding the procedural and substantive requirements for the approval of an enterprise agreement.

The central legal issues were whether the agreement met the formal and substantive requirements under the Fair Work Act for approval. The formal requirements included whether the agreement had been certified by a certified bargainer, whether the bargaining process was conducted in good faith, and whether the agreement was in the prescribed form. The substantive requirements involved assessing if the agreement was free from prohibited content, if it met the "better-off, worse-off or indifferent" test, and if it included appropriate dispute resolution processes.

The Fair Work Commission assessed the agreement against both the formal and substantive requirements. The Commission found that the agreement had been certified by a certified bargainer and that the bargaining process was conducted in good faith. The Commission also determined that the agreement was in the prescribed form and free from prohibited content. In terms of the substantive requirements, the Commission concluded that the agreement was better-off, worse-off or indifferent, and included appropriate dispute resolution processes. Accordingly, the Commission approved the agreement.

In approving the agreement, the Fair Work Commission issued orders to give effect to the approved terms and conditions of employment set out in the Kwill Constructions Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023. The Commission directed that the agreement would be registered and that it would come into effect on a specified date, providing certainty and legal enforceability to the terms agreed upon by the parties.

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