Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 2651

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/2697)

INTRAFORM PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONCRETE KERB AND CHANNEL ENTERPRISE AGREEMENT 2020-2023

Cement and concrete products
COMMISSIONER JOHNS	MELBOURNE, 22 AUGUST 2023

Application for approval of the INTRAFORM PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Kerb and Channel Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the INTRAFORM PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Kerb and Channel 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 29 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 matter before the Fair Work Commission involved an application for the approval of a specific enterprise agreement between Intraform Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) (Victorian Construction and General Division) Subcontractors Concrete Kerb and Channel Enterprise Agreement for the years 2020 to 2023. The applicant, Intraform Pty Ltd, sought approval for the agreement under the Fair Work Act 2009. The CFMEU opposed the application, arguing that the proposed agreement contained provisions that were not in the best interests of the employees covered by the agreement.

The primary legal issue before the Commission was whether the proposed enterprise agreement met the requirements of section 230 of the Fair Work Act, specifically whether it provided for the fair and equitable treatment of employees and whether it was in the best interests of the employees. The Commission also needed to consider whether the provisions of the agreement were consistent with the objectives of the Fair Work Act and whether any provisions were contrary to the public interest.

In considering the application, the Commission examined the various provisions of the agreement, including those relating to wages, conditions of employment, and other terms and conditions. The Commission found that the agreement provided for the fair and equitable treatment of employees and was in their best interests. The Commission also found that the provisions of the agreement were consistent with the objectives of the Fair Work Act and did not contravene any public policy considerations. The Commission noted that the agreement contained provisions that were designed to promote the efficient and effective operation of the business while also protecting the rights and interests of the employees.

The Commission approved the proposed enterprise agreement, subject to certain minor modifications. The modifications related to the calculation of overtime and the availability of shift premiums. The Commission found that these modifications were necessary to ensure that the agreement provided for the fair and equitable treatment of employees and was in their best interests. The Commission also noted that the modifications did not significantly alter the overall terms and conditions of the agreement. The Commission's decision was based on a detailed analysis of the evidence presented by both parties and a careful consideration of the relevant legal principles.

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