Construction, Forestry, Maritime, Mining and Energy Union Summary

[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.

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union applied 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. The agreement was made under the Fair Work Act 2009, aiming to establish terms and conditions for rock breakers and concrete demolition subcontractors employed by MSB Works. The dispute centred on whether the agreement met the legal criteria for approval under the Act, particularly focusing on issues of genuine bargaining, coverage, and fairness.

The primary legal issues the Commission had to address were whether the agreement was the product of genuine bargaining, whether it complied with the coverage provisions, and whether it was fair and reasonable. The Commission examined the bargaining process, the coverage of the agreement, and the provisions of the agreement itself to ensure they met the statutory requirements. The Commission also considered submissions from the parties and relevant precedents to make its determination.

The Commission found that the agreement was the product of genuine bargaining, as evidenced by the negotiation process and the willingness of both parties to compromise. The coverage of the agreement was deemed appropriate, as it accurately reflected the intended scope of the agreement. The Commission also concluded that the terms and conditions of the agreement were fair and reasonable, taking into account the nature of the work and the parties' bargaining positions. Consequently, the Commission approved the agreement, finding it to be in compliance with the Fair Work Act 2009.

Construction, Forestry, Maritime, Mining and Energy Union

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