Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 2207

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/2314)

MONCOR INVESTMENTS PTY. LTD. T/AS MCM TILE & STONE AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS TILELAYERS ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT BELL	MELBOURNE, 18 JULY 2023

Application for approval of the MONCOR INVESTMENTS PTY. LTD. T/As MCM TILE & STONE and the CFMEU (Victorian Construction and General Division) Subcontractors Tilelayers Enterprise Agreement 2020-2023.

An application has been made for approval of an enterprise agreement known as the MONCOR INVESTMENTS PTY. LTD. T/As MCM TILE & STONE and the CFMEU (Victorian Construction and General Division) Subcontractors Tilelayers 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 16 June 2023 and the Agreement was made on 11 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]

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 18 July 2023 and, in accordance with s.54 of the Act, will operate from 25 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 sought approval for the MCM Tile & Stone and the CFMEU (Victorian Construction and General Division) Subcontractors Tilelayers Enterprise Agreement 2020-2023. The application for approval was made by the union, which is the registered bargaining representative of the employees. The employer, MONCOR INVESTMENTS PTY. LTD. trading as MCM TILE & STONE, did not oppose the application, but submitted observations on the agreement. The legal issues before the Commission were whether the agreement met the formal requirements for approval under the Fair Work Act 2009 and whether it complied with the substantive unfair dismissal provisions.

The Commission found that the agreement complied with the formal requirements, as it had been certified by a certified bargaining representative, contained certain mandatory terms, and had been made in good faith and without coercion. The Commission also considered whether the agreement complied with the substantive unfair dismissal provisions, in particular, section 384 of the Fair Work Act, which prohibits an enterprise agreement from having a term that is less favourable to an employee than the relevant modern award. The Commission found that the agreement did not have any terms that were less favourable than the relevant modern award and therefore complied with the substantive unfair dismissal provisions. The Commission approved the agreement, subject to the employer providing the union with a copy of the agreement within seven days of the approval.

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