Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 2159

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/2299)

VISCON CONCRETE CONSTRUCTION PTY. LTD. AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS FORMWORK ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT BELL	MELBOURNE, 13 JULY 2023

Application for approval of the VISCON CONCRETE CONSTRUCTION PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023.

An application has been made for approval of an enterprise agreement known as the VISCON CONCRETE CONSTRUCTION PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork 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 8 June 2023 and the Agreement was made on 6 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 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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CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of the VISCON CONCRETE CONSTRUCTION PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023. The dispute centred around whether the terms of the proposed agreement complied with the statutory requirements under the Fair Work Act 2009.

The primary legal issues the court needed to address included whether the agreement met the criteria for registration as set out in the Act, specifically in relation to the provisions regarding wages, hours of work, leave, and other conditions of employment. Additionally, the court had to consider whether the agreement was genuinely negotiated between the employer and the union and whether it complied with the provisions concerning minimum entitlements and the preservation of the right to free collective bargaining.

The court found that the proposed agreement did indeed comply with the statutory requirements for approval. It was satisfied that the agreement was genuinely negotiated and that it did not contain any terms that were contrary to the Act. The court also noted that the agreement provided for fair wages, reasonable hours of work, and appropriate leave provisions, and that it preserved the right to free collective bargaining. Accordingly, the court approved the agreement, allowing it to be registered and enforceable as a legally binding enterprise agreement.

In conclusion, the Fair Work Commission approved the VISCON CONCRETE CONSTRUCTION PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023. The court determined that the agreement met all the necessary criteria for registration and was a fair and reasonable outcome for both the employer and the employees. The decision provided certainty and legal enforceability to the terms of the agreement, ensuring that it could be implemented as intended.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established