Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 2766

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/2845)

SPEEDPRO INDUSTRIES PTY LTD T/AS SPEEDPRO CONCRETE & LABOUR AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS FORMWORK ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	MELBOURNE, 30 AUGUST 2023

Application for approval of the SPEEDPRO INDUSTRIES PTY LTD T/AS SPEEDPRO CONCRETE & LABOUR 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 SPEEDPRO INDUSTRIES PTY LTD T/AS SPEEDPRO CONCRETE & LABOUR 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 6 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 applicant, SpeedPro Industries Pty Ltd trading as SpeedPro Concrete & Labour, sought approval for a proposed enterprise agreement with the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023. The application was made to the Fair Work Commission (FWC) under section 234 of the Fair Work Act 2009. The union opposed the application on several grounds, primarily asserting that the proposed agreement did not meet the "better off overall test" (BOOT) and contained provisions that were contrary to the public interest. The FWC was required to determine whether the agreement complied with the Act, particularly whether it met the BOOT and did not contravene any public interest considerations.

The FWC considered the BOOT and the public interest test in evaluating the proposed agreement. Regarding the BOOT, the FWC noted that while some employees would receive increased wages, others would experience a reduction in their entitlements, particularly concerning allowances for public holidays and shift penalties. The FWC concluded that, overall, the proposed agreement did not meet the BOOT because it did not demonstrate a sufficient overall improvement in terms and conditions of employment for the majority of the employees. Concerning the public interest, the FWC found that certain clauses in the agreement, which related to the application of the Work Health and Safety Act 2011 and the Building and Construction Industry Improvement Act 2005, could potentially undermine the objectives of these Acts and, therefore, were contrary to the public interest.

The FWC refused to approve the proposed agreement. The decision was based on the failure to meet the BOOT and the presence of provisions that were contrary to the public interest. The FWC determined that the proposed agreement did not provide a sufficient overall benefit to the employees and that certain clauses could potentially undermine important legislative objectives related to health and safety and industry improvement. Consequently, the application for approval was dismissed.

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