Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 1342

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/1246)

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

Building, metal and civil construction industries
COMMISSIONER JOHNS	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 Concrete Placement Enterprise Agreement 2020-2023

An application has been made for approval of a enterprise agreement known as the BRD INDUSTRIES UNIT TRUST T/As BRD INDUSTRIES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Placement 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.

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

The matter before the Fair Work Commission involved an application for the approval of the BRD Industries Unit Trust trading as BRD Industries Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Concrete Placement Enterprise Agreement 2020-2023. The agreement sought to govern the terms and conditions of employment for concrete placement subcontractors in Victoria, including wages, hours, and other employment-related matters. The Commission was tasked with determining whether the agreement met the necessary standards and criteria for approval under the Fair Work Act 2009.

The central legal issues before the Commission were whether the agreement complied with the requirements set forth in the Fair Work Act, including provisions related to the agreement's fairness, the process by which it was made, and its compliance with the Better Off Overall Test (BOOT). Additionally, the Commission had to consider whether the agreement appropriately balanced the interests of both employers and employees and whether it was made in good faith. The Commission also needed to assess if the agreement met the threshold of being a simple, fair, and portable agreement, as required by the Act.

In rendering its decision, the Commission examined the process by which the agreement was negotiated and concluded that it was conducted in good faith. The Commission found that the agreement had been appropriately balanced and met the BOOT. Furthermore, the Commission determined that the agreement was simple, fair, and portable, satisfying the statutory requirements. Consequently, the Commission approved the agreement, recognising its compliance with the necessary legal standards and its potential to provide a fair and workable framework for the employment of concrete placement subcontractors in Victoria.

The Fair Work Commission approved the BRD Industries Unit Trust trading as BRD Industries Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Concrete Placement Enterprise Agreement 2020-2023. The Commission's decision was based on the agreement's compliance with the relevant legal criteria, including its negotiation process, balance of interests, and adherence to the Better Off Overall Test. The approved agreement will now govern the terms and conditions of employment for concrete placement subcontractors in Victoria, providing a framework for fair and effective industrial relations in the sector.

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