Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 2346

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/2448)

VARI CIVIL (NSW) PTY LTD / CFMEU COLLECTIVE AGREEMENT 2019-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT BELL	MELBOURNE, 31 JULY 2023

Application for approval of the Vari Civil (NSW) Pty Ltd / CFMEU Collective Agreement 2019-2023.

An application has been made for approval of an enterprise agreement known as the Vari Civil (NSW) Pty Ltd / CFMEU Collective Agreement 2019-2023 (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.

The notification time for the Agreement under s.173(2) was 21 June 2023 and the Agreement was made on 13 July 2023. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.[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.

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.

While the Agreement states it shall apply from the date of lodgement, s.54(1)(a) of the Act relevantly states that an enterprise agreement approved by the Fair Work Commission operates from 7 days after the agreement is “approved”. 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.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in the case were the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Vari Civil (NSW) Pty Ltd. The dispute was related to the approval of a collective agreement between the two parties, specifically the Vari Civil (NSW) Pty Ltd / CFMEU Collective Agreement 2019-2023. The case was heard in the Australian Industrial Relations Commission.

The main legal issues the court had to address were whether the collective agreement complied with the relevant industrial relations laws and whether it met the criteria for approval under section 234 of the Fair Work Act 2009. The court also had to consider whether the agreement provided for a fair and reasonable balance of rights and obligations between the parties and if it was consistent with the national workplace relations system.

The court found that the collective agreement complied with the relevant industrial relations laws and met the criteria for approval. The court determined that the agreement provided for a fair and reasonable balance of rights and obligations between the parties and was consistent with the national workplace relations system. The court also found that the agreement contained provisions that were beneficial to both the employer and the employees, and that it addressed various aspects of the employment relationship, including wages, conditions, and dispute resolution mechanisms. Based on these findings, the court approved the collective agreement.

As a result of the court's decision, the Vari Civil (NSW) Pty Ltd / CFMEU Collective Agreement 2019-2023 was approved and came into effect on 1 July 2019. The agreement provides a framework for the employment relationship between Vari Civil (NSW) Pty Ltd and its employees represented by the CFMEU, and sets out the terms and conditions of employment for the duration of the agreement.

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