Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 1193

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/1096)

E&T POST TENSION PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS POST-TENSIONING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	MELBOURNE, 28 APRIL 2023

Application for approval of the E&T POST TENSION PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Post-Tensioning Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the E&T POST TENSION PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Post-Tensioning 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 5 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 involved an application for the approval of the E&T POST TENSION PTY LTD and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Post-Tensioning Enterprise Agreement 2020-2023. The dispute was heard in the Fair Work Commission, where the union and the employer sought to have the agreement recognised as a lawful and fair enterprise agreement. The union argued that the agreement fairly represented the employees, while the employer contended that the agreement was necessary for maintaining competitiveness and operational efficiency.

The central legal issue before the commission was whether the agreement met the criteria for approval as stipulated under the Fair Work Act 2009. Specifically, the commission had to determine if the agreement was a "genuine" enterprise agreement, meaning it was not made under duress, was made in good faith, and covered a genuine enterprise. Additionally, the commission had to ensure that the agreement provided for the proper operation of the enterprise and that it did not undermine the ability of employees to protect their interests.

In examining the agreement, the commission considered various factors, including the bargaining process, the content of the agreement, and its implications for the enterprise and the employees. The commission found that the agreement was genuinely made, free from any duress or coercion, and that it was made in good faith. The content of the agreement was deemed to be fair, providing adequate protections for the employees while also allowing the employer to operate efficiently. The commission concluded that the agreement met the legislative requirements for approval, ensuring it was fair and appropriate for the specific enterprise.

Consequently, the Fair Work Commission approved the E&T POST TENSION PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Post-Tensioning Enterprise Agreement 2020-2023. The decision affirmed the agreement as a lawful and fair enterprise agreement, recognising its balance between the interests of the employer and the employees.

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