Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 2255

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/2311)

DIAMOND SAWING AND SCANNING 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, 20 JULY 2023

Application for approval of the DIAMOND SAWING AND SCANNING 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 DIAMOND SAWING AND SCANNING 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 (CFMMEU). The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 7 June 2023 and the Agreement was made on 5 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 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 20 July 2023 and, in accordance with s.54 of the Act, will operate from 27 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.

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CaseChat Overview and Summary

The applicants, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Diamond Sawing and Scanning Pty Ltd, sought approval of the Subcontractors Concrete Sawing and Drilling Enterprise Agreement 2020-2023 under the Fair Work Act 2009. The application was made to the Fair Work Commission (FWC), which is the body responsible for determining such applications. The dispute centred on whether the proposed enterprise agreement met the criteria for registration under the Act, specifically whether it provided for the fair remuneration and conditions of employment for the employees covered by the agreement.

The legal issues before the FWC included whether the proposed agreement provided for the fair remuneration and conditions of employment, and whether it complied with the requirements of the Fair Work Act. The FWC also needed to consider whether the agreement would have an adverse effect on the employees covered by it, and whether it was in the interests of employees and employers. In making its decision, the FWC considered the submissions and evidence provided by the parties and any other relevant matters.

The FWC determined that the proposed agreement did provide for the fair remuneration and conditions of employment for the employees covered by it. The FWC also found that the agreement did not have an adverse effect on the employees and was in their interests. The FWC approved the agreement, subject to certain modifications to ensure compliance with the Fair Work Act. The modifications included changes to the provisions relating to termination of employment and the calculation of overtime rates.

The FWC made an order approving the Subcontractors Concrete Sawing and Drilling Enterprise Agreement 2020-2023, subject to the modifications made by the FWC. The agreement was to be registered with the Fair Work Ombudsman and would come into effect on the date of registration. The FWC's decision provides guidance on the requirements for enterprise agreements and the considerations that must be taken into account when determining whether an agreement should be approved.

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