Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 3056

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/3176)

MARKSCON COMMERCIAL PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) BUILDER ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 21 SEPTEMBER 2023

Application for approval of the MARKSCON COMMERCIAL PTY LTD 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 MARKSCON COMMERCIAL PTY LTD 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 3 August 2023 and the Agreement was made on 30 August 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, 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 28 September 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 the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union applied for the approval of the Markscon Commercial Pty Ltd and CFMEU (Victorian Construction and General Division) Builder Enterprise Agreement 2020-2023. The parties involved in the dispute were Markscon Commercial Pty Ltd, an employer, and the Construction, Forestry, Maritime, Mining and Energy Union, representing the employees. The primary focus of the dispute was the approval of the enterprise agreement that outlined terms and conditions of employment between the employer and the union.

The legal issues before the court centred on whether the agreement complied with the relevant provisions of the Fair Work Act 2009, including the requirement for the agreement to be in writing, to provide for a genuine bargain between the parties, and to meet the minimum standards set out in the National Employment Standards and other award provisions. The court also needed to assess whether the agreement was made in good faith and whether it had been properly certified by the relevant authority.

In delivering the decision, the Commission emphasised the importance of ensuring that the agreement met the statutory requirements and provided fair and reasonable terms for both the employer and the employees. The court found that the agreement satisfied the necessary criteria and was made in good faith. The Commission approved the enterprise agreement, acknowledging that it provided for a fair and reasonable outcome for both parties and complied with the relevant legislative provisions.

The final orders included the approval of the Markscon Commercial Pty Ltd and CFMEU (Victorian Construction and General Division) Builder Enterprise Agreement 2020-2023, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission, and the parties were directed to comply with the terms and conditions set out in the approved 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