Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 1373

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/1282)

C & S CONCRETING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONCRETE KERB AND CHANNEL ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	MELBOURNE, 17 MAY 2023

Application for approval of the C & S CONCRETING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Kerb and Channel Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the C & S CONCRETING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Kerb and Channel 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 24 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 matter before the Fair Work Commission involved an application for approval of an enterprise agreement between C & S Concreting Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors, specifically the Concrete Kerb and Channel Enterprise Agreement 2020-2023. The application was made under the Fair Work Act 2009, seeking the Commission's endorsement of the agreement which would then be directly applicable to the parties involved. The dispute centred on whether the agreement complied with the legislative requirements for enterprise agreements, including provisions on minimum wages and conditions, and whether it had been fairly negotiated.

The Commission was tasked with determining if the agreement met the procedural and substantive requirements set out in the Fair Work Act. This involved assessing whether the agreement had been made in good faith, whether the necessary procedural steps were followed, and whether the terms of the agreement were consistent with the national minimum standards and did not undermine the safety net of entitlements. The Commission also needed to consider if the agreement contained provisions that were not genuinely negotiated between the parties, which would render it invalid.

In delivering its decision, the Commission found that the agreement satisfied all the necessary conditions for approval. The agreement was negotiated in good faith, followed the required procedures, and contained terms that were consistent with national minimum standards. The Commission also determined that there were no provisions in the agreement that undermined the safety net of entitlements or were not genuinely negotiated. Consequently, the Commission approved the Concrete Kerb and Channel Enterprise Agreement 2020-2023, making it directly applicable to the parties involved.

The final orders of the Commission included the approval of the Concrete Kerb and Channel Enterprise Agreement 2020-2023 as a registered agreement, effective from the date of the decision. The agreement was to be directly applicable to the employees of C & S Concreting Pty Ltd and the members of the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors covered by the agreement. The decision also mandated the immediate implementation of the terms and conditions set out in the approved agreement.

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