Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 1800

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/1850)

VICTORIAN YMCA YOUTH & COMMUNITY SERVICES INC T/AS YMCA REBUILD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS LANDSCAPE

CONSTRUCTION ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	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 Landscape Construction 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 Landscape Construction 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, Maritime, Mining and Energy Union. 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.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application for the approval of a Subcontractors Enterprise Agreement between the Victorian YMCA Youth & Community Services Inc trading as YMCA Rebuild and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The application was made to the Fair Work Commission (FWC), the body responsible for regulating and approving such agreements in Australia. The YMCA sought to have the agreement, which covered landscape construction subcontractors, approved under the Fair Work Act 2009. The CFMEU did not oppose the application but raised concerns regarding certain provisions within the agreement.

The primary legal issue before the FWC was whether the proposed agreement complied with the requirements of the Fair Work Act, specifically in relation to the certification process and the content of the agreement itself. The FWC needed to determine if the agreement had been fairly negotiated and if it contained all the mandatory terms and conditions as prescribed by the Act. Additionally, the FWC had to consider the impact of the agreement on the employees covered by it, ensuring that the agreement did not undermine their rights or provide for unfair treatment.

In considering these issues, the FWC examined the negotiation process and the contents of the agreement. The Commission found that the agreement had been fairly negotiated between the parties and contained all the mandatory terms and conditions as required by the Act. The FWC also considered the concerns raised by the CFMEU and determined that the provisions in question did not adversely affect the employees' rights or lead to unfair treatment. Therefore, the FWC approved the application for the agreement to be registered, allowing it to come into effect. The FWC's decision was based on a detailed analysis of the negotiation process, the content of the agreement, and the potential impact on the employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established