Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 2889

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

(AG2023/2989)

WVW CONSTRUCTIONS PTY LTD T/AS PENFAB STEEL AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS RIGGER/STEEL ERECTOR ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 8 SEPTEMBER 2023

Application for approval of the WVW Constructions Pty Ltd T/as Penfab Steel and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the WVW Constructions Pty Ltd T/as Penfab Steel and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector 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 27 July 2023 and the Agreement was made on 22 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, 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 15 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, Construction, Forestry, Maritime, Mining and Energy Union, represented by the relevant division, applied for the approval of the WVW Constructions Pty Ltd T/as Penfab Steel and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector Enterprise Agreement 2020-2023. The dispute centred around whether the agreement complied with the relevant provisions of the Fair Work Act 2009. The legal issues before the court included whether the agreement met the formal requirements for registration, whether it adhered to the provisions of the Fair Work Act regarding minimum entitlements, and whether it was free from prohibited content.

The court considered the formal requirements of the agreement, which included whether the agreement was in writing and signed by authorised representatives. It examined whether the agreement provided for minimum entitlements as specified in the Fair Work Act, such as minimum rates of pay, leave entitlements, and other conditions of employment. Additionally, the court assessed whether the agreement contained any prohibited content, such as provisions that undermined the operation of the Act or that were otherwise unlawful.

After careful consideration, the court found that the agreement met all formal requirements and provided for the minimum entitlements as specified in the Fair Work Act. The court also determined that the agreement was free from any prohibited content. Consequently, the court approved the agreement, confirming its compliance with the relevant legislative framework.

The final orders of the court were that the WVW Constructions Pty Ltd T/as Penfab Steel and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector Enterprise Agreement 2020-2023 was approved and registered under the Fair Work Act 2009. The agreement was to be deemed to have effect from the date of the application and would remain in force until the specified end date, unless earlier terminated in accordance with the agreement or the Act.

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