Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 1196

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/1085)

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

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 27 APRIL 2023

Application for approval of the LIEBHERR-AUSTRALIA 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 LIEBHERR-AUSTRALIA 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, 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 4 May 2023. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of an application for approval of the LIEBHERR-AUSTRALIA PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Tower Crane Riggers Enterprise Agreement 2020-2023, the Fair Work Commission (FWC) was tasked with determining whether the enterprise agreement met the statutory criteria for approval under the Fair Work Act 2009. The application was made by the employer, LIEBHERR-AUSTRALIA PTY. LTD., and the union, CFMEU (Victorian Construction and General Division), seeking the FWC's endorsement of the proposed agreement, which aimed to establish the terms and conditions of employment for subcontractors involved in the operation of tower cranes.

The central legal issues before the FWC revolved around the compliance of the enterprise agreement with the provisions of the Fair Work Act. Specifically, the FWC had to ascertain whether the agreement was a "better off overall test" (BOOT) agreement, ensuring that the employees were not disadvantaged by the proposed terms compared to the applicable awards or previous agreements. Furthermore, the FWC had to assess whether the agreement complied with the procedural requirements, including proper consultation and the provision of necessary information to the employees. The FWC also had to determine if the agreement met the good faith bargaining requirement and if the terms of the agreement were fair and reasonable.

In delivering its decision, the FWC meticulously examined the evidence presented by both parties, focusing on the economic and procedural fairness of the proposed agreement. The FWC found that the agreement was a BOOT agreement, as it provided for a salary increase, improved conditions, and better entitlements for the employees compared to the applicable award. The FWC also determined that the employer and union had engaged in genuine and meaningful consultation, fulfilling the procedural requirements. The FWC concluded that the agreement was made in good faith and that its terms were fair and reasonable. Consequently, the FWC approved the enterprise agreement, finding it to be in compliance with the statutory criteria under the Fair Work Act.

As a result of the FWC's decision, the LIEBHERR-AUSTRALIA PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Tower Crane Riggers Enterprise Agreement 2020-2023 was approved and registered, effective from the date of the FWC's decision. The agreement now governs the employment conditions for subcontractors involved in the operation of tower cranes, providing a framework for a fair and equitable working environment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established