Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 2414

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/2497)

SZ CONSTRUCTION GROUP PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CARPENTRY AND JOINERY ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 4 AUGUST 2023

Application for approval of the SZ Construction Group Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the SZ Construction Group Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery 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 22 June 2023 and the Agreement was made on 20 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 11 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 matter before the Fair Work Commission involved an application for the approval of the Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023 between SZ Construction Group Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The dispute centred around whether the agreement met the requirements of the Fair Work Act 2009, particularly regarding the fairness and reasonableness of the terms and conditions it proposed. The Commission had to determine if the agreement was in the interests of the employees and the broader public.

The primary legal issue was whether the agreement contained provisions that were genuinely intended to be part of the agreement and whether these provisions were fair and reasonable in all circumstances. The Commission examined the terms of the agreement, including wages, working conditions, and dispute resolution mechanisms, to ensure they met the statutory criteria for approval. It also assessed if the agreement complied with the process requirements and if the union had genuinely negotiated the agreement with the employer.

In its decision, the Fair Work Commission found that the agreement was fairly and reasonably negotiated and contained provisions that were in the interests of the employees and the public. The Commission highlighted that the agreement provided for fair and equitable treatment of the employees, with adequate wage increases and reasonable working conditions. The dispute resolution mechanisms were also deemed to be fair and effective. Consequently, the Commission approved the agreement, recognising its compliance with the requirements of the Act.

The final orders of the Fair Work Commission included the approval of the Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023 between SZ Construction Group Pty Ltd and the CFMEU (Victorian Construction and General Division). This decision ensures that the terms and conditions of employment for the employees covered by the agreement are legally binding and enforceable. The approval underscores the Commission's role in facilitating fair and reasonable agreements that balance the interests of employers and employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established