Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 1404

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/1321)

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

COMMISSIONER JOHNS

MELBOURNE, 19 MAY 2023

Application for approval of the ROXX INDUSTRIAL 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 ROXX INDUSTRIAL 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 26 May 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 applicant, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), sought approval of the ROXX INDUSTRIAL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Labour Hire Enterprise Agreement 2020-2023. The matter was heard in the Fair Work Commission. The union argued that the agreement provided fair and reasonable terms for the employees involved, while the applicant opposed the approval, contending that the agreement did not meet the statutory criteria for endorsement.

The central legal issue was whether the agreement met the requirements of section 233 of the Fair Work Act 2009. The court had to determine if the agreement was fair and reasonable, taking into account the principles of procedural fairness, good faith bargaining, and the protection of employees' rights and interests. Additionally, the court examined whether the agreement provided adequate protections for the employees and balanced the interests of both parties.

The Fair Work Commission found that the agreement was fair and reasonable. The commission considered the evidence provided by both parties, including the terms of the agreement, the process of negotiation, and the protections offered to the employees. The commission concluded that the agreement met the statutory criteria for endorsement, as it provided fair and reasonable terms and adequately protected the employees' rights and interests. The commission also found that the negotiation process was conducted in good faith and that the agreement balanced the interests of both parties.

The Fair Work Commission approved the ROXX INDUSTRIAL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Labour Hire Enterprise Agreement 2020-2023. The union's application for approval was granted, and the agreement was endorsed as a registered agreement under the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established