Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 1944

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/1997)

SIX STAR CONSTRUCT PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CARPENTRY AND JOINERY ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 29 JUNE 2023

Application for approval of the SIX STAR CONSTRUCT PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry & Joinery Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the SIX STAR CONSTRUCT PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry & Joinery Enterprise Agreement 2020-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Construction, Forestry, Maritime, Mining and Energy Union. The Agreement is a single enterprise agreement.

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 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement 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 notification time for the agreement was before 6 June 2023. Question 17 of the Form F17 provides that the notification time for the Agreement was 15 May 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 25.2 of the Form F17 provides that the Agreement was made on 6 June 2023.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

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.

The Construction, Forestry, Maritime, Mining and Energy Union 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 is approved and, in accordance with s.54 of the Act, will operate from 6 July 2023. The nominal expiry date of the Agreement is 31 December 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case involves an application for the approval of a proposed enterprise agreement between the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and SIX STAR CONSTRUCT PTY LTD. The agreement, titled the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry & Joinery Enterprise Agreement 2020-2023, was submitted to the Fair Work Commission for approval. The Commission was required to determine whether the agreement met the criteria for registration under the Fair Work Act 2009.

The legal issues before the Court involved assessing whether the proposed agreement complied with the requirements of the Fair Work Act and the Fair Work Regulations. Specifically, the Court had to consider whether the agreement provided for genuine bargaining between the parties, whether it contained the necessary minimum terms and conditions, and whether it complied with the good faith provisions of the Act. The Court also had to consider whether the agreement would promote harmonious, productive, and cooperative workplace relations.

The Court found that the proposed agreement met all the criteria for approval. It was determined that the agreement had been genuinely bargained between the parties, and that it contained the necessary minimum terms and conditions. The Court also found that the agreement complied with the good faith provisions of the Act and would promote harmonious, productive, and cooperative workplace relations. As such, the Court approved the agreement for registration.

The Court made an order approving the proposed enterprise agreement and directing that it be registered under the Fair Work Act. The agreement will now be in force from the date of registration and will govern the employment conditions of the relevant employees.

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