Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 2435

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/2535)

EVER GLORY CONSTRUCTION PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS PLASTERING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	MELBOURNE, 8 AUGUST 2023

Application for approval of the EVER GLORY CONSTRUCTION PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Plastering Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the EVER GLORY CONSTRUCTION PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Plastering 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 15 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 case involved an application for the approval of the Ever Glory Construction Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Plastering Enterprise Agreement 2020-2023. The matter was heard in the Fair Work Commission, which has jurisdiction over the approval of enterprise agreements under the Fair Work Act 2009. The Union and the company sought the Commission's approval of the enterprise agreement, which was made between the two parties.

The legal issues that the Commission was required to decide included whether the agreement was a genuine enterprise agreement, whether the agreement was made in good faith, and whether the agreement provided for the proper process for future negotiations. The Commission also needed to determine whether the agreement complied with the minimum terms and conditions set out in the Fair Work Act 2009. The Union argued that the agreement was a genuine enterprise agreement and was made in good faith, while the company argued that the agreement was necessary to ensure the company's ongoing viability.

The Commission found that the agreement was a genuine enterprise agreement that was made in good faith. The Commission held that the agreement provided for the proper process for future negotiations and complied with the minimum terms and conditions set out in the Fair Work Act 2009. The Commission also found that the agreement was necessary to ensure the company's ongoing viability, which was a legitimate objective. The Commission was satisfied that the agreement met all the necessary requirements for approval under the Act.

The Fair Work Commission approved the Ever Glory Construction Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Plastering Enterprise Agreement 2020-2023. The agreement was approved on the basis that it was a genuine enterprise agreement, was made in good faith, and complied with the minimum terms and conditions set out in the Fair Work Act 2009. The Commission also found that the agreement was necessary to ensure the company's ongoing viability, which was a legitimate objective. The approval of the agreement is effective from 1 July 2020 and will expire on 30 June 2023.

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