Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 2434

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/2520)

ALWAYS PUMPIN PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONCRETE PUMPING ENTERPRISE AGREEMENT 2020-2023

Cement and concrete products
DEPUTY PRESIDENT MASSON	MELBOURNE, 8 AUGUST 2023

Application for approval of the ALWAYS PUMPIN PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Pumping Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the ALWAYS PUMPIN PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Pumping 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 30 June 2023 and the Agreement was made on 26 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 15 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 case involved an application for the approval of the ALWAYS PUMPIN PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Pumping Enterprise Agreement 2020-2023. The parties involved in the dispute were the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and ALWAYS PUMPIN PTY LTD. The dispute arose in the context of the Fair Work Act 2009, specifically under section 231, which allows for the approval of enterprise agreements. The case was heard in the Fair Work Commission, an Australian workplace relations tribunal.

The primary legal issue the court had to decide was whether the proposed enterprise agreement complied with the requirements of the Fair Work Act. This included whether the agreement provided for the fair and efficient resolution of workplace disputes, the protection of employee rights, and the promotion of productive and harmonious workplace relations. The court also needed to determine whether the agreement was appropriately certified by a relevant independent certifier and whether there was any evidence of undue influence or coercion in the negotiation process.

The court found that the proposed enterprise agreement met all the necessary criteria for approval under the Fair Work Act. The agreement was deemed to provide for the fair and efficient resolution of workplace disputes, the protection of employee rights, and the promotion of productive and harmonious workplace relations. The court also found that the agreement was appropriately certified and that there was no evidence of undue influence or coercion in the negotiation process. Therefore, the court approved the ALWAYS PUMPIN PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Pumping Enterprise Agreement 2020-2023.

The final orders of the court were that the ALWAYS PUMPIN PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Pumping Enterprise Agreement 2020-2023 be approved as a registered agreement under the Fair Work Act. The agreement was to take effect from the date of the decision and remain in force until the end of the specified period, which was 2023. The court also ordered that the agreement be published on the Fair Work Commission's website and that copies be provided to the relevant parties.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established