Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 1354

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/1248)

BRD INDUSTRIES UNIT TRUST T/AS BRD INDUSTRIES PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS FORMWORK ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 12 MAY 2023

Application for approval of the BRD INDUSTRIES UNIT TRUST T/As BRD 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 BRD INDUSTRIES UNIT TRUST T/As BRD 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 19 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

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) lodged an application for approval of the BRD Industries Unit Trust t/as BRD Industries Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023. The agreement was submitted for consideration under section 234 of the Fair Work Act 2009, seeking to be registered as a transitional agreement. The primary legal issues centred around whether the agreement met the criteria for transitional status as outlined in the Fair Work Act and if it contained provisions that were consistent with the principles of the Australian industrial relations system.

The Fair Work Commission examined the provisions of the agreement to determine if they adhered to the relevant legislative framework and if they provided a fair and reasonable outcome for the parties involved. The Commission considered whether the agreement met the requirements for transitional status, which included being a good faith, genuine and contemporary agreement. Additionally, the Commission assessed whether the agreement was consistent with the overarching objectives of the Fair Work Act, including maintaining and promoting productivity, sustainable economic growth and social inclusion. The Commission also evaluated if the agreement contained provisions that were fair and reasonable in all respects, taking into account the interests of both the employer and employees.

Following a thorough examination of the agreement, the Fair Work Commission determined that it met the criteria for transitional status under the Fair Work Act. The Commission found that the agreement contained provisions that were fair and reasonable, and that it promoted productivity, sustainable economic growth and social inclusion. The Commission was satisfied that the agreement was a genuine and contemporary agreement, made in good faith, and that it adhered to the principles of the Australian industrial relations system. Consequently, the Commission approved the application for the agreement to be registered as a transitional agreement.

The Fair Work Commission ordered that the BRD Industries Unit Trust t/as BRD Industries Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023 be registered as a transitional agreement, effective from the date of registration. The Commission also ordered that the agreement would remain in force until it was either replaced by a new agreement or terminated in accordance with the provisions of the Fair Work Act. This decision ensures that the parties involved have a fair and contemporary enterprise agreement that promotes productivity, sustainable economic growth and social inclusion.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established