| [2021] FWCA 2890 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5105)
WESTGARTH CIVIL 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, 20 MAY 2021 |
Application for approval of the Westgarth Civil 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 Westgarth Civil 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) and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.
[3] The Agreement was approved on 20 May 2021 and, in accordance with s 54, will operate from 27 May 2021. The nominal expiry date of the Agreement is 30 June 2023.
DEPUTY PRESIDENT
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- AGLC
- Construction, Forestry, Maritime, Mining and Energy Union [2021] FWCA 2890
- Case
- [2021] FWCA 2890
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Commission were whether the agreement met the statutory requirements under the Fair Work Act 2009, including provisions related to the agreement's coverage, the process through which it was negotiated, and whether it met the 'better off overall test'. This test requires that employees are not worse off financially under the new agreement than they would be under the applicable award or existing agreement. Additionally, the Commission had to consider the procedural fairness of the agreement, ensuring that the negotiation process was conducted in good faith and without coercion.
The Commission found that the application met the statutory requirements. The agreement was comprehensive and covered all relevant employees, and the negotiation process was deemed to have been conducted fairly. Furthermore, the Commission determined that the agreement met the 'better off overall test', as it provided for improved conditions and benefits for employees without any adverse financial impact. The procedural fairness was upheld, as there was no evidence of coercion or undue influence in the negotiation process. Consequently, the Commission approved the application, and the agreement was registered.
The final orders included the approval and registration of the Westgarth Civil Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023. The agreement was to come into effect on the date of registration, and all relevant parties were directed to comply with its terms.
Orders
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Background
Background to the litigation
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Evidence
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Decision
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Ratio Decidendi
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