Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 1549

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/1481)

SHEFORCE LABOUR HIRE PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS LABOUR HIRE ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	MELBOURNE, 31 MAY 2023

Application for approval of the SHEFORCE LABOUR HIRE PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Labour Hire Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the SHEFORCE LABOUR HIRE PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Labour Hire 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.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application for approval of a labour hire enterprise agreement between SHEFORCE LABOUR HIRE PTY LTD and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The application was brought before the Fair Work Commission. The agreement in question sought to regulate the terms and conditions of employment for labour hire workers employed by SHEFORCE LABOUR HIRE PTY LTD, who were then placed with other businesses.

The legal issues the court was required to decide centred on whether the proposed enterprise agreement met the requirements set out in the Fair Work Act 2009. Specifically, the court had to determine if the agreement was a "genuine" agreement, if it had been negotiated in good faith, and if it included the mandated minimum terms and conditions. The court also had to ensure that the agreement did not adversely affect employees adversely and was fair and reasonable.

The Fair Work Commission found that the proposed agreement was a genuine enterprise agreement and had been negotiated in good faith. The agreement covered the required minimum terms and conditions and did not unfavourably affect employees. The Commission also determined that the agreement was fair and reasonable, taking into account the nature of the labour hire industry and the specific circumstances of the parties involved. The application for approval was therefore granted.

The court ordered the approval of the SHEFORCE LABOUR HIRE PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Labour Hire Enterprise Agreement 2020-2023. The agreement was to be registered with the Fair Work Commission and would be in effect from the date of the decision until such time as it was terminated or replaced by a new agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established