Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 1547

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/1480)

THREE DIMENSIONAL CONSTRUCTION GROUP PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS PLASTERING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 31 MAY 2023

Application for approval of the THREE DIMENSIONAL CONSTRUCTION GROUP PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Plastering Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the THREE DIMENSIONAL CONSTRUCTION GROUP PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Plastering 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 7 June 2023. The nominal expiry date of the Agreement is 30 June 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 Plastering Enterprise Agreement 2020-2023 between Three Dimensional Construction Group Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The Fair Work Commission was the court before which the application was made. The primary dispute centred around whether the agreement met the statutory requirements for approval under the Fair Work Act 2009.

The legal issues that the Commission needed to decide included whether the agreement complied with the procedural fairness requirements, if it was genuinely a bargaining product of the parties, and whether it met the substantive criteria set out in the Act. The Commission also had to consider the impact of the agreement on the employees covered by it, and whether it contained terms and conditions that were fair and reasonable.

The Commission found that the agreement was procedurally valid, as it had been made following a genuine process of negotiation between the parties. It also determined that the agreement was genuinely a product of the bargaining efforts of the parties, as evidenced by the submissions and documentation provided. The substantive terms of the agreement were found to be fair and reasonable, meeting the criteria set out in the Act. The Commission was satisfied that the agreement provided for appropriate protections for employees and that it did not undermine the safety net of minimum entitlements. Consequently, the Commission approved the Subcontractors Plastering Enterprise Agreement 2020-2023.

The final orders of the Commission included the approval of the agreement, which will now be in effect from the date of the decision until it expires on the terms specified within the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established