Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 1219

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/1134)

BAMARA CRANES PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS TOWER CRANE RIGGERS ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 2 MAY 2023

Application for approval of the BAMARA CRANES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Tower Crane Riggers Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the BAMARA CRANES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Tower Crane Riggers 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 9 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 a proposed enterprise agreement between BAMARA CRANES PTY LTD and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) (Victorian Construction and General Division) Subcontractors Tower Crane Riggers Enterprise Agreement 2020-2023. The dispute centred on whether the proposed agreement met the requirements for approval under the Fair Work Act 2009, including its compliance with the Better Off Overall Test (BOOT).

The key legal issues before the Commission were whether the proposed agreement complied with the statutory requirements and if it provided employees with a fair and better outcome compared to the applicable award or previous enterprise agreement. Specifically, the Commission had to consider the impact of the proposed changes on employee entitlements, such as wages, hours of work, and other conditions of employment, to determine if the agreement was better off overall for the employees.

The Fair Work Commission determined that the proposed agreement met the necessary criteria for approval. The Commission found that the agreement provided a fair and better outcome for the employees, as it included wage increases, improved shift patterns, and additional entitlements, which outweighed any potential disadvantages. The Commission noted the parties' good faith negotiations and the agreement's alignment with broader industrial objectives. Consequently, the Commission approved the proposed enterprise agreement, finding it met the requirements under the Fair Work Act.

The final orders of the Commission included the approval of the CFMEU (Victorian Construction and General Division) Subcontractors Tower Crane Riggers Enterprise Agreement 2020-2023, effective from the date of the Commission's decision, with the agreement to be registered with the Fair Work Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established