Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 2343

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/2458)

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

Building, metal and civil construction industries
DEPUTY PRESIDENT BELL	MELBOURNE, 28 JULY 2023

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

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 Formwork 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.

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]

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.

The Agreement was approved on 28 July 2023 and, in accordance with s.54 of the Act, will operate from 4 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 Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought approval for the Australian Permeable Concrete Victoria Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023. This was a matter before the Fair Work Commission, which had the authority to approve such agreements. The agreement in question pertained to the employment conditions of formwork subcontractors within the construction industry in Victoria, including aspects such as wages, working hours, and other employment-related terms.

The legal issues before the Commission involved determining whether the proposed agreement met the statutory criteria for approval. This included assessing whether the agreement complied with the Fair Work Act 2009 and whether it was free from any illegal or unfair provisions. The Commission had to ensure that the agreement did not contravene any provisions of the Act and that it was fair and reasonable in its terms.

In considering these issues, the Commission examined the submissions made by the parties and conducted a thorough review of the proposed agreement. The Commission found that the agreement was in compliance with the statutory requirements and did not contain any illegal or unfair provisions. It was determined that the agreement was fair and reasonable, and thus, met the criteria for approval. Consequently, the Commission approved the agreement, allowing it to be registered and enforceable under the Fair Work Act.

The Fair Work Commission approved the Australian Permeable Concrete Victoria Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023. The Commission found that the agreement complied with the statutory requirements and did not contain any illegal or unfair provisions. This decision provided certainty and stability for the parties involved, ensuring that the employment terms for formwork subcontractors within the construction industry in Victoria were governed by a fair and reasonable 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