Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 1947

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/2008)

DEWCAPE PTY. LIMITED AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) DEWCAPE PROJECTS GREENFIELDS ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 30 JUNE 2023

Application for approval of the DEWCAPE PTY. LIMITED and the CFMEU (Victorian Construction and General Division) Dewcape Projects Greenfields Enterprise Agreement 2020-2023

An application has been made for approval of a greenfields agreement known as the DEWCAPE PTY. LIMITED and the CFMEU (Victorian Construction and General Division) Dewcape Projects Greenfields Enterprise Agreement 2020-2023 (the Agreement). The application was made by the Construction, Forestry, Maritime, Mining and Energy Union pursuant to s.185 of the Fair Work Act 2009 (Act).

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. Question 2.1 of the Form F20 provides that the Agreement was made on 9 June 2023.

This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that the Construction, Forestry, Maritime, Mining and Energy Union is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

Pursuant to s.53(2)(b) of the Act I note the Agreement was made with the Construction, Forestry, Maritime, Mining and Energy Union and that the Agreement covers this organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 July 2023. The nominal expiry date of the Agreement is 31 December 2023.

DEPUTY PRESIDENT

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 DEWCAPE PTY. LIMITED and the CFMEU (Victorian Construction and General Division) Dewcape Projects Greenfields Enterprise Agreement 2020-2023. The applicant, the union, sought the Commission's approval for the proposed enterprise agreement. The legal issues before the Commission were whether the agreement complied with the relevant provisions of the Fair Work Act 2009 and whether it met the requirements for being made under the safety net provisions.

The Commission held that the agreement complied with all relevant provisions of the Fair Work Act. The Commission found that the agreement was made in good faith and contained all necessary details, including the parties involved and the duration of the agreement. The Commission also found that the agreement provided for appropriate minimum terms and conditions, including pay rates and working conditions, and that it met the requirements for being made under the safety net provisions. The Commission approved the agreement, finding that it provided for fair and reasonable terms and conditions of employment for the employees covered by the agreement. The Commission also found that the agreement did not unfairly disadvantage any employees or employers and that it was in the best interests of the employees and employers involved. The Commission approved the agreement, subject to certain conditions and requirements, including the requirement for the agreement to be registered with the Fair Work Commission.

Construction, Forestry, Maritime, Mining and Energy Union

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