DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4819)

SWIFT STRUCTURES PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS STEELFIXING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 3 MAY 2021

Application for approval of the Swift Structures Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Steelfixing 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 Swift Structures Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Steelfixing 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. 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.

[2] 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 3 May 2021 and, in accordance with s 54, will operate from 10 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 applicant, Swift Structures Pty Ltd, sought approval of a proposed enterprise agreement with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) (Victorian Construction and General Division). The proposed agreement was for a period of three years, from 2020 to 2023, and aimed to regulate the terms and conditions of employment for subcontractors engaged by Swift Structures. The application was heard by the Fair Work Commission (FWC).

The central legal issue before the FWC was whether the proposed enterprise agreement met the requirements of the Fair Work Act 2009. Specifically, the FWC had to determine if the agreement contained the necessary 'protected action' provisions, which are essential for the protection of employees' rights and interests under the Act. The FWC also needed to consider if the agreement complied with the 'better off overall test', ensuring that employees would be no worse off financially and had access to at least the same terms and conditions as those provided under the applicable award or safety net.

The FWC found that the proposed agreement satisfied the 'protected action' requirements, as it contained provisions that protected employees from adverse action by their employer for engaging in protected industrial action. The FWC also concluded that the agreement met the 'better off overall test', as it provided employees with terms and conditions that were at least as favourable as those provided under the relevant award. The FWC approved the proposed agreement, stating that it would provide a fair and balanced outcome for both the employer and the employees.

As a result of the FWC's decision, the proposed enterprise agreement between Swift Structures Pty Ltd and the CFMEU (Victorian Construction and General Division) was approved and registered. The agreement would now govern the employment terms and conditions of subcontractors engaged by Swift Structures for the duration of the agreement, from 2020 to 2023.

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