Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 3115

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/3301)

ARK INDUSTRIAL GROUP PTY LTD T/AS AP GROUP BUILDERS AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) BUILDER ENTERPRISE AGREEMENT 2020-2023

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

Application for approval of the ARK INDUSTRIAL GROUP PTY LTD T/As AP GROUP BUILDERS and the CFMEU (Victorian Construction and General Division) Builder Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the ARK INDUSTRIAL GROUP PTY LTD T/As AP GROUP BUILDERS and the CFMEU (Victorian Construction and General Division) Builder 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 11 August 2023 and the Agreement was made on 7 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 matter before the court involved an application for the approval of a Builder Enterprise Agreement between ARK INDUSTRIAL GROUP PTY LTD trading as AP GROUP BUILDERS and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The union sought to have the agreement approved under the Fair Work Act 2009. The application was heard in the Fair Work Commission, with the decision being made by Deputy President J.A. Bell.

The central legal issue was whether the proposed agreement complied with the statutory requirements under the Fair Work Act, specifically whether it met the criteria for approval as a "better off overall test" (BOOT) agreement. This test requires that the agreement's benefits outweigh any detriments for the employees covered by it, compared to their previous conditions. The court needed to determine if the agreement provided sufficient benefits to justify its approval.

The court examined the terms of the proposed agreement and the evidence presented by both parties. It considered the overall economic impact of the agreement on the employees, including wage rates, hours of work, and other conditions of employment. The court also assessed whether the agreement provided adequate protections and benefits to the employees, such as improved leave provisions, redundancy payments, and dispute resolution mechanisms. After careful consideration, the court found that the agreement met the statutory requirements and approved the agreement as it provided net benefits to the employees. The decision was made on the basis that the proposed agreement was fair and balanced, offering improvements in key areas that outweighed any potential detriments.

The Fair Work Commission approved the Builder Enterprise Agreement between ARK INDUSTRIAL GROUP PTY LTD and the CFMEU (Victorian Construction and General Division) for the period 2020 to 2023. The approval was effective from the date of the decision, ensuring that the terms of the agreement would apply to the employees covered by it.

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