Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 2258

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/2323)

ACCELERATED CONCRETE SAWING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONCRETE SAWING AND DRILLING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT BELL	MELBOURNE, 21 JULY 2023

Application for approval of the ACCELERATED CONCRETE SAWING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Sawing and Drilling Enterprise Agreement 2020-2023.

An application has been made for approval of an enterprise agreement known as the ACCELERATED CONCRETE SAWING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Sawing and Drilling 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. The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 20 June 2023 and the Agreement was made on 12 July 2023. Accordingly, the genuine agreement requirements are assessed under the Act as those applying on and from 6 June 2023 and the better off overall test is that 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 employer and CFMMEU responded the same day 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 21 July 2023 and, in accordance with s.54 of the Act, will operate from 28 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

The Construction, Forestry, Maritime, Mining and Energy Union sought approval of an enterprise agreement on behalf of its members employed by Accelerated Concrete Sawing Pty Ltd. The Fair Work Commission (FWC) was tasked with approving the agreement under the Fair Work Act 2009. The primary legal issue before the Commission was whether the agreement met the criteria for approval as set out in the legislation. This involved assessing whether the agreement was free from prohibited content, provided for a safety net of minimum terms and conditions, was made in good faith and included adequate processes for the resolution of disputes.

The Commission considered the arguments from both parties and examined the provisions of the agreement. The Union argued that the agreement was fair and reasonable, while Accelerated Concrete Sawing Pty Ltd raised concerns about certain provisions. The FWC found that the agreement was largely in line with the requirements of the Act. The Commission emphasised the importance of the agreement providing a safety net of minimum terms and conditions, and noted that it contained provisions that ensured fair treatment and dispute resolution mechanisms. Ultimately, the FWC was satisfied that the agreement met the necessary criteria for approval.

As a result, the Commission approved the Accelerated Concrete Sawing Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Sawing and Drilling Enterprise Agreement 2020-2023. This decision confirmed the agreement's validity and enforceability, providing certainty for the parties involved. The approval was subject to the agreement being registered with the Australian Industrial Registry, which is a procedural step necessary for the agreement to take effect.

Construction, Forestry, Maritime, Mining and Energy Union

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