Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 1827

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/1849)

VICTORIAN YMCA YOUTH & COMMUNITY SERVICES INC T/AS YMCA REBUILD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CARPENTRY AND JOINERY ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 21 JUNE 2023

Application for approval of the VICTORIAN YMCA YOUTH & COMMUNITY SERVICES INC T/As YMCA REBUILD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the VICTORIAN YMCA YOUTH & COMMUNITY SERVICES INC T/As YMCA REBUILD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and 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.

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, 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 28 June 2023. The nominal expiry date of the Agreement is 31 December 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, the Victorian YMCA Youth & Community Services Inc trading as YMCA Rebuild, applied to the Fair Work Commission for the approval of a new enterprise agreement. The applicant was the employer party, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) (Victorian Construction and General Division) was the employee party. The agreement was set to cover a period of three years, from 2020 to 2023. The dispute centred around whether the proposed agreement met the requirements of the Fair Work Act 2009 and was in the best interests of the employees.

The court had to decide whether the proposed agreement was a "better off overall test" (BOOT) agreement, meaning that it would improve the financial and non-financial conditions of the employees. The court also needed to determine if the agreement contained all the required minimum terms and conditions and if it complied with the relevant provisions of the Fair Work Act. The court further examined whether the agreement was made in good faith and whether it was appropriately certified by the relevant union.

The court found that the proposed agreement did indeed meet the BOOT criteria and contained all the required minimum terms and conditions. The court also determined that the agreement was made in good faith and was appropriately certified by the relevant union. The court was satisfied that the proposed agreement was in the best interests of the employees and did not contain any provisions that would be detrimental to them. The court approved the agreement, which will now be in effect from the specified period.

The court approved the YMCA Rebuild and CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023, subject to any modifications required by the Fair Work Act. The approval means that the agreement will now govern the employment conditions of the employees covered by it for the specified period. The applicant and the union are now bound by the terms of the approved agreement, which they must adhere to during the duration of the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established