Construction, Forestry, Maritime, Mining and Energy Union
[2023] FWCA 2160
•13 JULY 2023
| [2023] FWCA 2160 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Construction, Forestry, Maritime, Mining and Energy Union
(AG2023/2239)
MSB WORKS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ROCK BREAKERS & CONCRETE DEMOLITION SUBCONTRACTORS ENTERPRISE AGREEMENT 2020-2023
| Building, metal and civil construction industries | |
| DEPUTY PRESIDENT BELL | MELBOURNE, 13 JULY 2023 |
Application for approval of the MSB WORKS PTY LTD and the CFMEU (Victorian Construction and General Division) Rock Breakers & Concrete Demolition Subcontractors Enterprise Agreement 2020-2023.
An application has been made for approval of an enterprise agreement known as the MSB WORKS PTY LTD and the CFMEU (Victorian Construction and General Division) Rock Breakers & Concrete Demolition Subcontractors 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 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 13 July 2023 and, in accordance with s.54 of the Act, will operate from 20 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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