Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 2315

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/2349)

ASAP PILING PTY. LTD. AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS PILING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT BELL	MELBOURNE, 26 JULY 2023

Application for approval of the ASAP PILING PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Piling Enterprise Agreement 2020-2023.

An application has been made for approval of an enterprise agreement known as the ASAP PILING PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Piling 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 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]

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.

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 26 July 2023 and, in accordance with s.54 of the Act, will operate from 2 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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CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of a proposed enterprise agreement between ASAP PILING PTY. LTD. and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute centred on the terms of the Subcontractors Piling Enterprise Agreement 2020-2023, with the union arguing that the agreement met the necessary criteria for endorsement under the Fair Work Act 2009. The Commission was required to determine whether the agreement complied with the relevant legislative requirements and whether it was made in good faith.

The primary legal issues before the Commission were whether the agreement had been made in accordance with the prescribed processes and whether it met the criteria for approval as set out in the Fair Work Act. The Commission needed to assess whether the agreement was made without compulsion or undue influence, and whether it provided for the pay and conditions of the employees in a fair and reasonable manner. Additionally, the Commission examined whether the agreement facilitated, promoted or improved the productivity of the workplace.

The Fair Work Commission found that the proposed agreement was made in good faith and without any element of compulsion or undue influence. The Commission acknowledged that the agreement contained terms and conditions that were fair and reasonable, considering the nature of the industry and the bargaining positions of the parties. The agreement was deemed to facilitate the productivity of the workplace and was in line with the broader objectives of the Fair Work Act. Consequently, the Commission approved the Subcontractors Piling Enterprise Agreement 2020-2023.

The Fair Work Commission approved the Subcontractors Piling Enterprise Agreement 2020-2023, effective from the date of the Commission's decision. The agreement was found to be made in good faith, without any undue influence or compulsion, and was deemed fair and reasonable in terms of pay and conditions. The Commission's approval was based on the agreement's compliance with the requirements of the Fair Work Act and its potential to promote productivity in the workplace.

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