Construction, Forestry, Maritime, Mining and Energy Union
[2023] FWCA 3004
•18 SEPTEMBER 2023
| [2023] FWCA 3004 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Construction, Forestry, Maritime, Mining and Energy Union
(AG2023/2884)
CTR PACIFIC PTY LTD AND CFMEU, ACT BRICKLAYING AGREEMENT 2023
| Building, metal and civil construction industries | |
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 18 SEPTEMBER 2023 |
Application for approval of the CTR Pacific Pty Ltd and CFMEU, ACT Bricklaying Agreement 2023
Introduction
The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has made an application for approval of an enterprise agreement known as the CTR Pacific Pty Ltd and CFMEU, ACT Bricklaying Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Employer covered by the Agreement is CTR Pacific Pty Ltd. The Agreement is a single enterprise agreement.
Transitional arrangements under the Secure Jobs, Better Pay amendment
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.
Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The notification time for the Agreement was 6 July 2023.
Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The Agreement was made on 9 August 2023.
Section 188 – Genuine Agreement
Section 188(1) of the Act requires the Commission to take into account the statement of principles made under section 188B in determining whether it is satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement. Paragraph 15 of the statement of principles requires that employees should be given a reasonable opportunity to vote on a proposed enterprise agreement in a free and informed manner.
Five out of twenty-two employees exercised a vote in relation to the Agreement. The parties were asked to provide further evidence in relation to paragraphs 15 and 16 of the statement of principles.
The CFMMEU provided comprehensive submissions, supported by the Employer, which included that it represents a substantial proportion of the workforce covered by the Agreement, that it supports the approval of the agreement, that it does not have concerns that the Agreement was not genuinely agreed to by the employees covered by the Agreement and that this should be given significant weight by the Commission in considering whether the Agreement has been genuinely agreed to under paragraph 19 of the statement of principles. The CFMMEU also submitted that on 1 August 2023, employees were provided with written notice of the time, date, and place of the meeting at which the vote was scheduled, and of the voting method to be used. Seventeen employees attended the meeting of 1 August 2023, which was held in working time and for which employees were released from work to attend. All employees were verbally reminded by their foreman on the day of the vote that the vote was to occur at the time and place previously notified.
On the basis of the submissions provided by the CFMMEU and the F18 and amended F17B declarations, I am satisfied that each of the requirements of s.188 have been met and that the Agreement has been genuinely agreed to by the employees covered by the Agreement.
Section 190 Undertakings
The employer provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.
Section 186, 187 and 190
Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187 and 190 as are relevant to this application for approval have been met.
Section 183 Bargaining Representatives
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.
Approval
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 30 June 2026.
DEPUTY PRESIDENT
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