Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 2958

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/3097)

SORCO CONCRETE PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS FORMWORK ENTERPRISE AGREEMENT 2020-2023

Cement and concrete products
COMMISSIONER LEE	MELBOURNE, 18 SEPTEMBER 2023

Application for approval of the Sorco Concrete Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the Sorco Concrete Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork 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.

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 25 September 2023. The nominal expiry date of the Agreement is 31 December 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application for the approval of a subcontractor's enterprise agreement between Sorco Concrete Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The application was heard by the Fair Work Commission (FWC). The primary dispute centred around the validity and fairness of the proposed enterprise agreement, specifically in terms of its compliance with the relevant legislative framework and its adherence to the principles of good faith bargaining and fairness.

The legal issues that the FWC was required to decide included whether the agreement had been made in good faith, whether it was fair and reasonable, and whether it complied with the necessary provisions of the Fair Work Act 2009. The FWC had to examine the process by which the agreement was negotiated, the terms of the agreement itself, and whether any undue influence or coercion was exerted during the bargaining process. Additionally, the FWC considered whether the agreement met the standard of procedural fairness and whether it contained terms that were just and reasonable in all the circumstances.

In delivering its decision, the FWC meticulously reviewed the evidence provided by both parties, including testimonies and documentation related to the negotiation process. The Commission found that the agreement had been made in good faith and that the bargaining process was free from any undue influence. The FWC also concluded that the terms of the agreement were fair and reasonable, taking into account the specific needs and circumstances of the employees involved. The FWC approved the subcontractor's enterprise agreement, noting that it complied with the relevant provisions of the Fair Work Act and met the required standards of procedural fairness and reasonableness.

The final orders of the FWC included the approval of the Sorco Concrete Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023. The agreement was deemed to be in accordance with the law and was approved for operation.

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