Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 2408

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/2494)

PRIME TILE & STONE AUSTRALIA PTY LTD. AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS TILELAYERS ENTERPRISE AGREEMENT 2020-2023

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

Application for approval of the PRIME TILE & STONE AUSTRALIA PTY LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Tilelayers Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the PRIME TILE & STONE AUSTRALIA PTY LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Tilelayers 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 8 June 2023 and the Agreement was made on 12 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 case before the Fair Work Commission involved an application for the approval of the Prime Tile & Stone Australia Pty Ltd. and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Tilelayers Enterprise Agreement 2020-2023. The application was made by the union on behalf of the employees and the employer on behalf of the business. The dispute centred on whether the proposed enterprise agreement met the requirements under the Fair Work Act 2009 for it to be approved by the Commission.

The legal issues before the court were whether the agreement was a genuine bargain between the parties, whether it met the "better off overall test" (BOOT), and whether it complied with the relevant provisions of the Fair Work Act. Additionally, the court had to consider if the agreement was fair and reasonable in all its terms and whether it complied with the enterprise bargaining provisions.

The Commission found that the agreement was a genuine bargain and satisfied the BOOT test, meaning that the overall financial and non-financial benefits to the employees outweighed any detriments. The court also held that the agreement complied with the relevant provisions of the Fair Work Act, including the provisions on minimum entitlements, the right to request flexible working arrangements, and the right to request unpaid parental leave. The Commission was satisfied that the agreement was fair and reasonable in all its terms and was therefore approved.

As a result, the Fair Work Commission approved the Prime Tile & Stone Australia Pty Ltd. and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Tilelayers Enterprise Agreement 2020-2023, effective from the date of the decision. The agreement will now apply to the employees and employers covered by the agreement, providing them with a framework for their employment terms and conditions.

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