Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 2652

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/2722)

ASKIN (VIC) PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS COOLROOM BUILDER ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 22 AUGUST 2023

Application for approval of the ASKIN (VIC) PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Coolroom Builder Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the ASKIN (VIC) PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Coolroom Builder 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 8 June 2023 and the Agreement was made on 28 July 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 29 August 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 parties involved in this case were the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Askin (Vic) Pty Ltd. The dispute centred on the application for approval of the Subcontractors Coolroom Builder Enterprise Agreement 2020-2023, under the Fair Work Act 2009. The case was heard in the Fair Work Commission.

The legal issues that the Fair Work Commission was required to decide included whether the enterprise agreement met the requirements of the Fair Work Act and whether it was in the best interests of the employees covered by the agreement. The Commission also needed to consider whether the agreement contained any provisions that were contrary to public policy.

The Fair Work Commission found that the enterprise agreement did meet the requirements of the Fair Work Act and was in the best interests of the employees covered by the agreement. The Commission noted that the agreement contained provisions that were designed to protect the rights and interests of the employees, such as provisions relating to minimum wages and conditions, dispute resolution and redundancy. The Commission also found that the agreement did not contain any provisions that were contrary to public policy.

The Fair Work Commission approved the Subcontractors Coolroom Builder Enterprise Agreement 2020-2023, subject to certain modifications. The modifications included changes to the agreement's dispute resolution provisions, to ensure that they were consistent with the Fair Work Act. The Commission also made changes to the agreement's provisions relating to redundancy, to ensure that they were fair and reasonable.

In summary, the Fair Work Commission approved the Subcontractors Coolroom Builder Enterprise Agreement 2020-2023, subject to certain modifications. The Commission found that the agreement met the requirements of the Fair Work Act and was in the best interests of the employees covered by the agreement. The modifications made to the agreement ensured that it was consistent with the Fair Work Act and that it contained fair and reasonable provisions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established