Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 2687

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/2736)

B.D HICKMAN & D HICKMAN T/AS HICKMAN CONTRACTING AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS DEMOLITION ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	MELBOURNE, 23 AUGUST 2023

Application for approval of the B.D HICKMAN & D HICKMAN T/As HICKMAN CONTRACTING and the CFMEU (Victorian Construction and General Division) Subcontractors Demolition Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the B.D HICKMAN & D HICKMAN T/As HICKMAN CONTRACTING and the CFMEU (Victorian Construction and General Division) Subcontractors Demolition 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 30 August 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, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought approval of an Enterprise Agreement from the Fair Work Commission (FWC). The agreement in question was the B.D HICKMAN & D HICKMAN T/As HICKMAN CONTRACTING and the CFMEU (Victorian Construction and General Division) Subcontractors Demolition Enterprise Agreement 2020-2023. The applicant argued that the agreement met the criteria for approval under the Fair Work Act 2009. The respondent, the company, did not object to the agreement but submitted that the FWC should not make orders approving the agreement as the FWC lacked the necessary jurisdictional power to do so. The central issue before the FWC was whether it possessed the requisite jurisdiction to approve the Enterprise Agreement. The applicant contended that the FWC had the authority to approve the agreement as it was required to do under the Fair Work Act. The respondent maintained that the FWC lacked the power to approve the agreement as the parties had not applied for such approval and the agreement did not fall within the scope of agreements that could be approved by the FWC.

The FWC found that it had the necessary jurisdiction to approve the Enterprise Agreement. The FWC reasoned that the Fair Work Act provided for the approval of agreements that met the criteria set out in the Act. The FWC noted that the agreement in question met those criteria and that the applicant had applied for approval of the agreement. The FWC further found that the respondent's argument that it lacked the power to approve the agreement was without merit. The FWC held that the respondent's argument was based on a misunderstanding of the role of the FWC in approving Enterprise Agreements. The FWC found that the respondent had not provided any authority to support its argument and that the FWC had the power to approve the agreement as it was required to do under the Fair Work Act.

Accordingly, the FWC approved the B.D HICKMAN & D HICKMAN T/As HICKMAN CONTRACTING and the CFMEU (Victorian Construction and General Division) Subcontractors Demolition Enterprise Agreement 2020-2023. The FWC made orders approving the agreement and setting out the terms and conditions of the agreement. The FWC found that the agreement met the criteria for approval under the Fair Work Act and that it was in the best interests of the employees covered by the agreement. The FWC noted that the agreement provided for a fair and equitable outcome for both the employees and the employer and that it would promote harmonious, productive and cooperative workplace relations. The FWC concluded that the agreement should be approved and made orders to that effect.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established