Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 1169

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/1076)

OSV PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS LANDSCAPE CONSTRUCTION ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 27 APRIL 2023

Application for approval of the OSV PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Landscape Construction Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the OSV PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Landscape Construction 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 4 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

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union, on behalf of a number of employees, applied for approval of the OSV PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Landscape Construction Enterprise Agreement 2020-2023. The applicants sought to have the agreement registered under the Fair Work Act 2009, which requires that a certain standard of fairness be met in all enterprise agreements. The dispute was between OSV PTY LTD and the union, representing landscape construction employees.

The central legal issue before the Commission was whether the agreement met the statutory requirements for fairness as outlined in the Fair Work Act 2009. This involved examining the agreement's provisions for minimum rates of pay, entitlements, dispute resolution processes, and other matters. The Commission considered whether the agreement provided for a safety net of minimum terms and conditions, including minimum rates of pay and conditions, and whether it allowed for fair and flexible workplace practices. Additionally, the Commission assessed if the agreement contained provisions for the negotiation and resolution of workplace disputes.

After thorough examination, the Commission found that the agreement contained all the required minimum terms and conditions and allowed for fair and flexible workplace practices. The agreement provided for a comprehensive safety net, including minimum rates of pay and other entitlements. The Commission also noted that the agreement included provisions for the negotiation and resolution of workplace disputes, which were considered to be fair and effective. Therefore, the Commission approved the agreement, finding that it met the statutory requirements for fairness under the Fair Work Act 2009.

The Fair Work Commission approved the OSV PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Landscape Construction Enterprise Agreement 2020-2023, registering it under the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established