DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4822)

CONNOR CONCRETE AND FORMWORK 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, 3 MAY 2021

Application for approval of the Connor Concrete and Formwork 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 Connor Concrete and Formwork 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), I note that the Agreement covers the CFMMEU.

[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

In this matter, Connor Concrete and Formwork Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) sought approval of their enterprise agreement from 2020 to 2023. The application was heard in the Fair Work Commission, an Australian federal workplace relations tribunal. The dispute centred on whether the agreement met the requirements of the Fair Work Act 2009, including its provisions on procedural fairness and substantive fairness.

The legal issues before the Commission were whether the agreement was made in accordance with the procedural requirements of the Fair Work Act, and whether the agreement contained terms that were fair and reasonable. The Commission had to consider the submissions from both parties and evidence presented regarding the bargaining process and the terms of the agreement. A critical issue was whether the union had properly represented the employees in the bargaining process, given that a majority of the employees had not voted in favour of the union being their bargaining agent.

The Commission found that the agreement was made in accordance with the procedural requirements of the Fair Work Act. It noted that the union had properly represented the employees in the bargaining process, despite the fact that a majority of the employees had not voted in favour of the union being their bargaining agent. The Commission also found that the agreement contained terms that were fair and reasonable, taking into account the interests of both parties and the broader economic and employment context. The Commission was satisfied that the agreement would not have an adverse effect on the employees' conditions of employment or on the competitiveness of the employer. Consequently, the Commission approved the agreement.

The Fair Work Commission approved the Connor Concrete and Formwork Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023. The decision is a reminder of the importance of proper bargaining and the role of the Commission in ensuring that enterprise agreements are fair and reasonable.

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