Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 2271

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/2368)

YURRINGA PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) INDIGENOUS EMPLOYMENT & TRAINING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT BELL	MELBOURNE, 24 JULY 2023

Application for approval of the YURRINGA PTY LTD and the CFMEU (Victorian Construction and General Division) Indigenous Employment & Training Enterprise Agreement 2020-2023.

An application has been made for approval of an enterprise agreement known as the YURRINGA PTY LTD and the CFMEU (Victorian Construction and General Division) Indigenous Employment & Training 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 22 June 2023 and the Agreement was made on 14 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 24 July 2023 and, in accordance with s.54 of the Act, will operate from 31 July 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

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union applied for approval of the YURRINGA PTY LTD and the CFMEU (Victorian Construction and General Division) Indigenous Employment & Training Enterprise Agreement 2020-2023. The application was made under section 232 of the Fair Work Act 2009. The applicant submitted that the agreement be approved as a transitional agreement because it met the criteria in section 232(1)(b) of the Act. The applicant also submitted that the agreement be approved as a modern award because it met the criteria in section 165 of the Act.

The central issue before the Commission was whether the agreement should be approved as a transitional agreement and whether it should be approved as a modern award. The Commission considered the submissions from both parties and the evidence presented. In making its decision, the Commission had regard to the provisions of the Fair Work Act 2009 and relevant case law.

The Commission found that the agreement did not meet the criteria for approval as a transitional agreement. However, it did meet the criteria for approval as a modern award. The Commission was satisfied that the agreement provided for terms and conditions of employment that met the objectives of the Act and that it would promote improved productivity, efficiency and profitability. The Commission also found that the agreement did not contain any terms that were contrary to the public interest. The Commission approved the agreement as a modern award under section 165 of the Fair Work Act 2009. The Commission also made orders pursuant to section 244 of the Act, including orders that the agreement be registered and published on the Fair Work Commission's website.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established