Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 2499

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/2567)

HENNY PTY LTD AND THE CFMEU (VICTORIAN

CONSTRUCTION AND GENERAL DIVISION) BUILDER ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	MELBOURNE, 10 AUGUST 2023

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

An application has been made for approval of an enterprise agreement known as the HENNY PTY LTD and the CFMEU (Victorian Construction and General Division) 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.

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 17 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 an enterprise agreement between Henny Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The dispute centred on whether the proposed agreement met the necessary criteria for approval under the Fair Work Act 2009. The Fair Work Commission, as the tribunal with jurisdiction over such matters, was tasked with determining the validity and fairness of the agreement.

The primary legal issues addressed by the Commission included whether the agreement contained genuine bargaining between the parties, whether it complied with the procedural requirements for enterprise agreements, and whether it met the 'better off overall test'. The Commission also examined whether the agreement provided for the proper protection of employees' rights and whether it adhered to the statutory minimum terms and conditions as stipulated in the Fair Work Act.

The Commission concluded that the proposed agreement did meet the criteria for approval. It found that there was evidence of genuine bargaining and that the agreement was procedurally sound. The Commission also determined that the agreement satisfied the better off overall test, as it provided for a reasonable balance of rights and obligations for both the employer and the employees. Furthermore, the agreement was found to comply with the statutory minimum terms and conditions, ensuring the protection of employees' rights. Based on these findings, the Commission approved the enterprise agreement.

The Fair Work Commission approved the Henny Pty Ltd and CFMEU (Victorian Construction and General Division) Builder Enterprise Agreement 2020-2023, confirming its compliance with the Fair Work Act and its suitability for implementation. The approval signifies the agreement's validity and enforceability, providing a framework for the terms and conditions of employment for the relevant period.

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