Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 1624

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/1565)

FORTIS CONSTRUCTION PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS FORMWORK ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	MELBOURNE, 6 JUNE 2023

Application for approval of the FORTIS CONSTRUCTION PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the FORTIS CONSTRUCTION PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork 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. 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 13 June 2023. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of the Fortis Construction Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023. The agreement was proposed to govern the terms and conditions of employment for formwork subcontractors working for Fortis Construction Pty Ltd and other subcontractors under similar circumstances. The Commission's task was to determine whether the agreement met the necessary criteria for approval under the Fair Work Act 2009.

The legal issues before the Commission centred on whether the proposed enterprise agreement complied with the statutory requirements set out in the Fair Work Act. Specifically, the Commission needed to ascertain whether the agreement was made in good faith, whether it contained all the mandatory terms and conditions as required by the Act, and if it had been fairly negotiated. Additionally, the Commission needed to assess whether the agreement provided for the proper application of the principles of enterprise bargaining and whether it ensured fairness for all parties involved.

In delivering its decision, the Commission examined the evidence and submissions provided by both parties. It was satisfied that the agreement had been made in good faith and that it contained all the mandatory terms as required by the Act. The Commission noted that the agreement had been negotiated fairly and was in line with the principles of enterprise bargaining. The Commission also concluded that the agreement provided for the proper application of the principles of enterprise bargaining and ensured fairness for all parties involved. Consequently, the Commission approved the Fortis Construction Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023.

The Fair Work Commission approved the Fortis Construction Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023. The approval was subject to the agreement being registered with the Fair Work Commission, and the parties were directed to take all necessary steps to ensure its registration. The agreement was set to commence on 1 July 2020 and would remain in effect until 30 June 2023. The Commission's decision provided clarity and certainty for the parties involved and established a fair and balanced agreement for formwork subcontractors working for Fortis Construction Pty Ltd and other subcontractors under similar circumstances.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established