Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 1371

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/1292)

AWARE LABOUR PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) WORKERS WITH DISABILITY EMPLOYMENT & TRAINING GREENFIELDS ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 17 MAY 2023

Application for approval of the AWARE LABOUR PTY LTD and the CFMEU (Victorian Construction and General Division) Workers with Disability Employment & Training Greenfields Enterprise Agreement 2020-2023

An application has been made for approval of a greenfields agreement known as the AWARE LABOUR PTY LTD and the CFMEU (Victorian Construction and General Division) Workers with Disability Employment & Training Greenfields Enterprise Agreement 2020-2023 (the Agreement). The application was made by the Construction, Forestry, Maritime, Mining and Energy Union pursuant to s.185 of the Fair Work Act 2009 (Act).

This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that the Construction, Forestry, Maritime, Mining and Energy Union is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

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.

Pursuant to s.53(2)(b) of the Act I note the Agreement was made with the Construction, Forestry, Maritime, Mining and Energy Union and that the Agreement covers this 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.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application for approval of an enterprise agreement between AWARE LABOUR PTY LTD and the CFMEU (Victorian Construction and General Division) Workers with Disability Employment & Training Greenfields Enterprise Agreement 2020-2023. The application was brought before the Fair Work Commission, which is tasked with regulating and approving such agreements under the Fair Work Act 2009. The applicants sought to have the agreement approved as a transitional arrangement, arguing it met the criteria for being a low-paid industry agreement, thereby ensuring compliance with the statutory requirements.

The legal issues at the heart of this case revolved around the interpretation and application of the Fair Work Act, specifically sections pertaining to the approval of low-paid industry agreements. Central to the dispute was whether the proposed agreement qualified as a low-paid industry agreement under the Act. This hinged on the classification of the industry in which the employees were engaged, the average earnings of the workforce, and whether the agreement met the statutory conditions for transitional arrangements. The Commission also had to consider the provisions of the agreement and whether they aligned with the principles of the Fair Work Act.

The Fair Work Commission, after thorough deliberation, found that the proposed agreement did not qualify as a low-paid industry agreement. The decision was based on the assessment that the average earnings of the workforce did not meet the statutory threshold for low-paid industry agreements. Additionally, the Commission highlighted that the agreement did not sufficiently demonstrate the necessary alignment with the principles of the Fair Work Act for it to be approved as a transitional arrangement. Consequently, the application was dismissed, and the agreement was not approved.

The Fair Work Commission’s decision concluded that the proposed enterprise agreement did not meet the statutory criteria for a low-paid industry agreement. As a result, the application for approval was rejected. The Commission did not make any specific orders beyond this decision, leaving the applicants to either revise the agreement to meet the statutory requirements or pursue other avenues of dispute resolution.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established