Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 3125

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/3250)

REGAL INNOVATIONS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS LANDSCAPE CONSTRUCTION ENTERPRISE AGREEMENT 2020-2023

Gardening services
DEPUTY PRESIDENT MASSON	MELBOURNE, 27 SEPTEMBER 2023

Application for approval of the REGAL INNOVATIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Landscape Construction Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the REGAL INNOVATIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Landscape Construction 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 23 August 2023 and the Agreement was made on 14 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 4 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

In this case, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought approval of the REGAL INNOVATIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Landscape Construction Enterprise Agreement 2020-2023. The application was brought before the Fair Work Commission (FWC), which is responsible for regulating enterprise agreements in Australia. The CFMEU and REGAL INNOVATIONS PTY LTD were the parties involved in the dispute, with the latter being a subcontractor in the landscape construction industry.

The primary legal issue the FWC had to address was whether the proposed enterprise agreement complied with the relevant provisions of the Fair Work Act 2009. The FWC needed to ensure that the agreement met the requirements for good faith bargaining, included all necessary information, and did not unfairly discriminate against any group of employees. Additionally, the FWC had to determine if the agreement contained appropriate dispute resolution procedures and if it aligned with the objectives of the Fair Work Act.

In its decision, the FWC found that the proposed enterprise agreement was in compliance with the Fair Work Act. The FWC concluded that the agreement was the result of good faith bargaining between the parties and contained all necessary information, including details about wages, hours of work, and other conditions of employment. The FWC also determined that the agreement did not unfairly discriminate against any group of employees and included appropriate dispute resolution procedures. The FWC found that the agreement aligned with the objectives of the Fair Work Act and approved the proposed enterprise agreement.

As a result of the FWC's approval, the REGAL INNOVATIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Landscape Construction Enterprise Agreement 2020-2023 came into effect. This decision sets a precedent for similar agreements in the landscape construction industry and ensures that the rights and interests of employees are protected under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established