Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 2130

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/2202)

LASER SCREED SERVICES PTY. LTD. AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONCRETE PLACEMENT ENTERPRISE AGREEMENT 2020-2023

DEPUTY PRESIDENT BELL

MELBOURNE, 11 JULY 2023

Application for approval of the LASER SCREED SERVICES PTY. LTD.and the CFMEU (Victorian Construction and General Division) SubcontractorsConcrete Placement Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the LASER SCREED SERVICES PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Placement 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 6 June 2023 and the Agreement was made on 28 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 11 July 2023 and, in accordance with s.54 of the Act, will operate from 18 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 a subcontractor's enterprise agreement between LASER SCREED SERVICES PTY. LTD. and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The dispute centred around whether the proposed enterprise agreement, which was intended to govern the employment conditions of concrete placement subcontractors, met the necessary legal standards and requirements set out under the Fair Work Act 2009.

The central legal issue before the Commission was whether the proposed agreement satisfied the criteria for approval as stipulated in the Act. This included ensuring the agreement provided for the minimum terms and conditions, included mechanisms for dispute resolution, and did not contain any provisions that would undermine the integrity of the industrial relations system. Additionally, the Commission needed to ascertain if the agreement was made without coercion and had been genuinely negotiated between the parties.

The Commission meticulously examined the provisions of the proposed agreement against the legislative framework. It found that the agreement met the necessary criteria for approval. The Commission noted that the agreement provided for the minimum terms and conditions, contained adequate dispute resolution mechanisms, and did not include any provisions that would be detrimental to the industrial relations system. Furthermore, the Commission was satisfied that the agreement was genuinely negotiated and not made under any form of coercion. Consequently, the Commission approved the proposed enterprise agreement, confirming its compliance with the requirements of the Fair Work Act 2009.

The Fair Work Commission approved the LASER SCREED SERVICES PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Placement Enterprise Agreement 2020-2023, effective from the date of the decision. This approval formalised the terms and conditions of employment for concrete placement subcontractors under the agreement, providing legal certainty and stability for the parties involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established