Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 1151

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/1049)

J. MILNER SERVICES PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS RIGGER/STEEL ERECTOR ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 26 APRIL 2023

Application for approval of the J. MILNER SERVICES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the J. MILNER SERVICES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector 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 3 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

The matter before the Fair Work Commission involved an application for approval of an enterprise agreement between J. Milner Services Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector Enterprise Agreement 2020-2023. The dispute centred on whether the proposed agreement complied with the relevant legislative framework, specifically the Fair Work Act 2009, and whether it met the necessary criteria for approval by the Commission.

The primary legal issues the Commission had to address were whether the agreement complied with the requirements for a protected action agreement, and whether it satisfied the ‘better off overall test’. The Commission examined whether the agreement provided employees with terms and conditions that were at least as good as the applicable award or the general industrial law. Additionally, the Commission assessed whether the agreement included any terms that could be considered to undermine the purpose of the Fair Work Act by discouraging protected industrial action.

In reaching its decision, the Fair Work Commission considered the submissions from both parties and examined the content of the proposed agreement. The Commission determined that the agreement was compliant with the requirements of the Fair Work Act and met the ‘better off overall test’. The Commission found that the agreement provided employees with terms and conditions that were at least as good as the applicable award or the general industrial law. Furthermore, the Commission concluded that the agreement did not include any terms that could be considered to undermine the purpose of the Fair Work Act by discouraging protected industrial action. As a result, the Commission approved the proposed agreement.

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