Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 2518

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/2581)

SRG INDUSTRIES PTY LTD T/AS SUPREME PRECAST AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL

DIVISION) SUBCONTRACTORS CAULKING AND SEALING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 11 AUGUST 2023

Application for approval of the SRG INDUSTRIES PTY LTD T/AS SUPREME PRECAST and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the SRG INDUSTRIES PTY LTD T/AS SUPREME PRECAST and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing 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 27 June 2023 and the Agreement was made on 19 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 18 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

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union applied for approval of the SRG Industries Pty Ltd t/as Supreme Precast and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023. The dispute arose from the process of seeking approval for the proposed enterprise agreement, which aimed to regulate the terms and conditions of employment for caulking and sealing subcontractors within the Supreme Precast operations. The application was contested by the employer, which raised concerns about the agreement's compliance with the relevant legislation.

The primary legal issues before the Commission were whether the agreement met the requirements of the Fair Work Act 2009 and if it was in the best interests of the employees. This involved assessing the agreement's fairness, the process through which it was negotiated, and its potential impact on the employees' conditions and rights. The Commission also needed to consider the objections raised by the employer and determine if any provisions of the agreement could be disallowed or modified to ensure fairness and compliance.

The Commission examined the negotiation process, finding it to be conducted in good faith and in accordance with the provisions of the Act. It reviewed the substantive terms of the agreement, including wages, working hours, leave provisions, and other employment conditions. The Commission concluded that the agreement was fair and reasonable, taking into account the needs and interests of the employees and the employer. It addressed the employer's concerns by modifying certain provisions to ensure compliance with the Act and protect the employees' interests. The Commission approved the agreement with the modifications, balancing the rights and obligations of both parties.

The final orders of the Commission included the approval of the agreement with certain modifications, ensuring that it met the requirements of the Fair Work Act 2009 and was in the best interests of the employees. The modifications addressed the employer's concerns while preserving the integrity and fairness of the agreement. The Commission's decision provided a framework for the terms and conditions of employment for caulking and sealing subcontractors within the Supreme Precast operations, reflecting a fair balance between the rights of the employees and the employer.

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