Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 2985

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/3081)

SUNLINE SCAFFOLDING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONTRACT SCAFFOLDING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 15 SEPTEMBER 2023

Application for approval of the Sunline Scaffolding Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Contract Scaffolding Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the Sunline Scaffolding Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Contract Scaffolding 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 7 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 22 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 case involved the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Sunline Scaffolding Pty Ltd. The matter pertained to an application for the approval of a subcontractor agreement, specifically the Sunline Scaffolding Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Contract Scaffolding Enterprise Agreement 2020-2023. The application was brought before the Fair Work Commission.

The primary legal issues that the Fair Work Commission had to address were whether the proposed agreement met the criteria for approval under the Fair Work Act 2009. This included assessing if the agreement was free from prohibited content, if it had been genuinely agreed to by the parties, and if it met the better off overall test. The Commission needed to determine if the agreement provided fair terms and conditions for the employees involved, and if it complied with all relevant statutory requirements.

The Fair Work Commission determined that the proposed agreement did meet the necessary criteria for approval. It found that the agreement was free from prohibited content, as it did not include any provisions that were contrary to the objects of the Act. The Commission also concluded that the agreement had been genuinely negotiated and agreed upon by the parties, as evidenced by the submissions and documentation provided. Furthermore, the Commission was satisfied that the agreement met the better off overall test, as it provided for fair and reasonable terms and conditions for the employees covered by the agreement. The Commission ultimately approved the agreement, allowing it to come into effect as of the specified date.

The Fair Work Commission's final order was to approve the Sunline Scaffolding Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Contract Scaffolding Enterprise Agreement 2020-2023, effective from the date of the decision. This decision ensures that the terms and conditions outlined in the agreement will govern the employment relationship between the parties for the duration of the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established