Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 3005

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/3112)

SE7EN INVESTMENTS PTY LTD T/AS MET-BAR AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS STEELFIXING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 18 SEPTEMBER 2023

Application for approval of the SE7EN INVESTMENTS PTY LTD T/As MET-BAR and the CFMEU (Victorian Construction and General Division) Subcontractors Steelfixing Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the SE7EN INVESTMENTS PTY LTD T/As MET-BAR and the CFMEU (Victorian Construction and General Division) Subcontractors Steelfixing 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, 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 25 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

The Fair Work Commission has recently determined an application concerning the approval of the SE7EN INVESTMENTS PTY LTD T/As MET-BAR and the CFMEU (Victorian Construction and General Division) Subcontractors Steelfixing Enterprise Agreement 2020-2023. The applicant, SE7EN INVESTMENTS PTY LTD T/As MET-BAR, sought approval of the proposed agreement, which aims to regulate the employment conditions of subcontractors involved in steelfixing within the construction industry. The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) represented the interests of the employees in this matter.

The primary legal issue before the Commission was whether the proposed agreement met the necessary requirements for approval under the Fair Work Act 2009. This involved assessing whether the agreement provided for fair and reasonable terms and conditions for the employees, as well as whether it complied with the Fair Work (Registered Organisations) Act 2009. Additionally, the Commission considered whether the agreement was genuinely negotiated between the parties and whether it was consistent with the objectives of the Fair Work Act.

In its decision, the Commission found that the proposed agreement satisfied the necessary criteria for approval. It determined that the agreement provided for fair and reasonable terms and conditions for the employees, taking into account the specific nature of the steelfixing industry. The Commission also found that the agreement was genuinely negotiated between the parties, as evidenced by the extensive consultation and negotiation process undertaken. Furthermore, the Commission was satisfied that the agreement was consistent with the objectives of the Fair Work Act and did not contain any provisions that would be detrimental to the employees.

The Fair Work Commission approved the SE7EN INVESTMENTS PTY LTD T/As MET-BAR and the CFMEU (Victorian Construction and General Division) Subcontractors Steelfixing Enterprise Agreement 2020-2023. The approval ensures that the proposed agreement will govern the employment conditions of subcontractors involved in steelfixing within the construction industry, providing a framework for fair and reasonable terms and conditions for the employees. The decision reinforces the importance of genuine negotiation and the objectives of the Fair Work Act in the context of enterprise agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established