Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 2996

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/3130)

CENTRACON PTY LTD AS TRUSTEE FOR BRAD MORRISSY FAMILY TRUST T/AS CENTRACON AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS PLASTERING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 19 SEPTEMBER 2023

Application for approval of the CENTRACON PTY LTD AS TRUSTEE FOR BRAD MORRISSY FAMILY TRUST T/As CENTRACON and the CFMEU (Victorian Construction and General Division) Subcontractors Plastering Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the CENTRACON PTY LTD AS TRUSTEE FOR BRAD MORRISSY FAMILY TRUST T/As CENTRACON and the CFMEU (Victorian Construction and General Division) Subcontractors Plastering 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 15 August 2023 and the Agreement was made on 6 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 26 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 sought approval for an enterprise agreement between Centracon Pty Ltd as trustee for Brad Morrissy Family Trust trading as Centracon and the CFMEU (Victorian Construction and General Division) Subcontractors. The union argued that the agreement was a fair and reasonable one for the purposes of section 233 of the Fair Work Act 2009. The employer, Centracon, contested the union's application, arguing that the agreement did not meet the requirements for approval under the Fair Work Act.

The primary legal issue before the Commission was whether the proposed enterprise agreement was fair and reasonable, as required by section 233 of the Fair Work Act. This required the Commission to assess whether the agreement met the "better off overall test" and whether it contained terms that were procedurally fair. The Commission had to consider the evidence and submissions from both parties to determine if the agreement was fair and reasonable.

After examining the evidence and submissions, the Commission found that the agreement was fair and reasonable. The Commission determined that the agreement met the better off overall test and contained procedurally fair terms. The Commission noted that the agreement provided for a reasonable balance of entitlements and obligations for both parties and that it did not contain any terms that were unfair or unreasonable. The Commission approved the agreement, finding that it met the requirements for approval under the Fair Work Act.

The Commission approved the proposed enterprise agreement, finding that it was fair and reasonable. The agreement was approved on the terms and conditions set out in the application and any attachments. The employer and the union were bound by the terms of the agreement, which would operate for the period specified in 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