Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 2642

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/2685)

LANDSCAPE 360 GROUP PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS LANDSCAPE CONSTRUCTION ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 21 AUGUST 2023

Application for approval of the LANDSCAPE 360 GROUP PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Landscape Construction Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the LANDSCAPE 360 GROUP PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Landscape Construction 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 18 July 2023 and the Agreement was made on 9 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 28 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 to this case were the Landscape 360 Group Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) (Victorian Construction and General Division). They sought approval of the Subcontractors Landscape Construction Enterprise Agreement 2020-2023. The matter was heard in the Fair Work Commission. The dispute centred on whether the proposed enterprise agreement complied with the requirements of the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement was fair and reasonable, and whether it had been genuinely bargained for in good faith.

The Commission considered several legal issues, including the application of the "better-off-overall test" to ensure employees were not worse off financially, and whether the agreement contained all the mandated terms and conditions. Another issue was whether the union had properly represented its members in the negotiation process. The Commission also examined if the agreement complied with any relevant industry awards or orders.

The Fair Work Commission concluded that the enterprise agreement was fair and reasonable, and had been genuinely bargained for in good faith. The Commission found that the agreement met the better-off-overall test, and that it contained all the mandated terms and conditions. The Commission also found that the union had properly represented its members, and that the agreement complied with any relevant industry awards or orders. The Commission approved the enterprise agreement, which will now be in effect for the next three years.

The Commission's decision was binding on both parties, and the approved enterprise agreement is now the governing document for the employment conditions of the employees covered by the agreement. The Commission's approval ensures that the agreement is legally enforceable, and provides certainty and stability to both employers and employees.

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