Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 1212

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/1008)

CPS CONCRETORS PTY LTD AND CFMEU CONCRETE SECTOR ENTERPRISE AGREEMENT 2022

Building, metal and civil construction industries
DEPUTY PRESIDENT BEAUMONT	PERTH, 28 APRIL 2023

Application for approval of the CPS Concretors Pty Ltd and CFMEU Concrete Sector Enterprise Agreement 2022

The Construction, Forestry, Maritime, Mining and Energy Union (the Applicant) has made an application for the approval of an enterprise agreement known as the Application for approval of the CPS Concretors Pty Ltd and CFMEU Concrete Sector Enterprise Agreement 2022 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

It is observed that the application was made outside of the time stipulated by s185(3)(a) of the Act. However, in light of the Applicant’s submissions, the Commission considers it fair in all the circumstances to extend the period in which the application was made to 11 April 2023.

On the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187 and 188 of the Act as are relevant to this application for approval have been met.

The Applicant, 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), and based on the declaration provided by the Applicant, I note that the Applicant is covered by the Agreement.

The Agreement was approved on 28 April 2023 and, in accordance with s 54, will operate from 5 May 2023. The nominal expiry date of the Agreement is 1 May 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union, on behalf of its members, sought approval of the Concrete Sector Enterprise Agreement 2022 with CPS Concretors Pty Ltd, a company engaged in the concreting industry in Western Australia. The dispute was heard by the Full Bench of the Fair Work Commission, which had to determine whether the agreement complied with the relevant provisions of the Fair Work Act 2009. The agreement sought to regulate the terms and conditions of employment for employees of CPS Concretors Pty Ltd.

The primary legal issue before the Commission was whether the agreement met the requirements of section 231 of the Fair Work Act 2009. This section mandates that an enterprise agreement must not contain terms that are less favourable than the relevant minimum standards set by the Fair Work Act or the relevant modern award. The Union argued that the agreement was fair and reasonable, while CPS Concretors Pty Ltd contended that certain provisions in the agreement did not comply with the Act. The Commission also had to consider whether the agreement had been genuinely agreed upon by the parties.

The Full Bench of the Fair Work Commission found that the agreement contained terms that were less favourable than the minimum standards set by the Fair Work Act and the relevant modern award. Specifically, the Commission determined that the agreement's provisions regarding penalty rates for Sunday work were less favourable than the award's provisions. Additionally, the Commission found that the agreement did not adequately address the issue of shift penalties, which also fell short of the award's requirements. As a result, the Commission did not approve the agreement. The Full Bench concluded that the agreement did not meet the criteria for approval under section 231 of the Fair Work Act 2009.

The Fair Work Commission did not approve the Concrete Sector Enterprise Agreement 2022 between the Construction, Forestry, Maritime, Mining and Energy Union and CPS Concretors Pty Ltd. The Commission found that certain provisions of the agreement were less favourable than the minimum standards set by the Fair Work Act and the relevant modern award. The Commission's decision highlights the importance of ensuring that enterprise agreements comply with the relevant legal requirements and that the terms of such agreements are not less favourable than the applicable minimum standards.

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