Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 2381

[2023] FWCA 2381

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/2464)

AUSTRALIAN PERMEABLE CONCRETE VICTORIA PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONCRETE PUMPING ENTERPRISE AGREEMENT 2020-2023

Cement and concrete products
DEPUTY PRESIDENT BELL	MELBOURNE, 31 JULY 2023

Application for approval of the AUSTRALIAN PERMEABLE CONCRETE VICTORIA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Pumping Enterprise Agreement 2020-2023.

1. An application has been made for approval of an enterprise agreement known as the AUSTRALIAN PERMEABLE CONCRETE VICTORIA 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) by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). The Agreement is a single enterprise agreement.

1. The notification time for the Agreement under s.173(2) was 28 June 2023 and the Agreement was made on 21 July 2023. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.[1]

1. Correspondence was sent to the parties by my Chambers seeking clarification as to whether apprentices are covered by the Agreement. The CFMMEU responded advising there are no apprenticeships offered under the Agreement. I am satisfied for the purpose of s.193A(6), and determine under s.193A(6A), of the Act, that apprenticeships are not a type of employment that is reasonably foreseeable as that is relevant for the better off overall test.

1. Having regard to the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer. However, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

1. The CFMMEU, 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.

1. The Agreement was approved on 31 July 2023 and, in accordance with s.54 of the Act, will operate from 7 August 2023. The nominal expiry date of the Agreement is 31 December 2023.

DEPUTY PRESIDENT

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements which are not applicable to the present application.

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