Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 1519

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/1451)

DX3 INDUSTRIES PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS FORMWORK ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 29 MAY 2023

Application for approval of the DX3 INDUSTRIES 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 DX3 INDUSTRIES 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 5 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 parties involved in this case were DX3 Industries Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), specifically its Victorian Construction and General Division. The dispute centred around the application for approval of a proposed enterprise agreement, the Subcontractors Formwork Enterprise Agreement 2020-2023. The matter was heard in the Fair Work Commission. The legal issues that the Commission needed to address involved whether the proposed agreement met the criteria for approval under the Fair Work Act 2009. This included assessing whether the agreement provided for the "bare minimum" terms and conditions, did not adversely affect employees, and whether the agreement had been made in good faith.

The Commission examined the agreement clause by clause, considering its provisions in light of the statutory requirements. It was crucial to determine whether the agreement provided adequate protections for employees and whether it met the "better off overall test". The Commission also assessed the process by which the agreement was made to ensure it was done in good faith. In its reasoning, the Commission noted that while some aspects of the agreement did not provide for terms and conditions that were better than the applicable awards or agreements, the overall effect of the agreement was not detrimental to the employees. Furthermore, the Commission found that the agreement had been made in good faith and that the parties had engaged in genuine bargaining.

Consequently, the Fair Work Commission approved the Subcontractors Formwork Enterprise Agreement 2020-2023, finding that it met the necessary criteria for approval. The agreement was set to commence on the date of the decision and would be registered with the Fair Work Ombudsman. This decision underscored the importance of ensuring that enterprise agreements provide fair and reasonable terms and conditions for employees while also promoting good faith bargaining between employers and unions.

Construction, Forestry, Maritime, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established