Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 3105

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/3245)

MELBOURNE LINEMARKING AND COURT MAINTENANCE PTY. LTD. AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS ARCHITECTURAL FEATURES AND FITTINGS ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 26 SEPTEMBER 2023

Application for approval of the MELBOURNE LINEMARKING AND COURT MAINTENANCE PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the MELBOURNE LINEMARKING AND COURT MAINTENANCE PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings 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 5 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 3 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 matter, Melbourne Linemarking and Court Maintenance Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023 was the subject of a dispute. The dispute was heard and determined by the Fair Work Commission. The parties sought to have the enterprise agreement approved by the Commission.

The central legal issue before the Commission was whether the enterprise agreement complied with the relevant statutory requirements, including whether it contained the necessary minimum terms and conditions of employment. The Commission had to consider whether the agreement was consistent with the Fair Work Act 2009 and the Fair Work Regulations 2009. Additionally, the Commission had to assess whether the agreement was made in good faith and whether it was appropriately certified by an accredited bargaining representative.

The Commission found that the enterprise agreement did comply with the statutory requirements. The agreement contained all the necessary minimum terms and conditions, was consistent with the Fair Work Act and Regulations, and was made in good faith. The Commission also determined that the agreement was appropriately certified by an accredited bargaining representative. Based on these findings, the Commission approved the enterprise agreement.

As a result of the Commission's decision, the enterprise agreement between Melbourne Linemarking and Court Maintenance Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023 was approved and is now in effect. The terms and conditions set out in the agreement will govern the employment relationship between the parties for the duration of the agreement.

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