Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 1029

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/840)

CLAD CARPENTRY PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS ALUMINIUM & GLASS ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 11 APRIL 2023

Application for approval of the CLAD CARPENTRY PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Aluminium & Glass Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the CLAD CARPENTRY PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Aluminium & Glass 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 18 April 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 application before the Fair Work Commission involved the approval of a proposed enterprise agreement between CLAD Carpentry Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), specifically for the Aluminium and Glass Enterprise Agreement 2020-2023. The dispute centred on whether the proposed agreement met the necessary legal standards for approval under the Fair Work Act 2009. The Commission was required to determine if the agreement complied with all relevant provisions of the Act, including its fairness, and whether it was appropriately negotiated and certified. The application was brought in the context of ensuring that the proposed agreement would provide fair terms and conditions for the employees covered by the agreement while also balancing the interests of the employer.

The primary legal issues that the Commission had to address were whether the agreement was appropriately negotiated, if it was fairly drafted, and whether it met the requirements for approval under the Fair Work Act. A key consideration was the compliance of the agreement with the 'better off overall test', which requires that employees are not worse off financially under the proposed agreement compared to their existing terms and conditions. The Commission also needed to ensure that the agreement did not contravene any minimum entitlements prescribed by the Act and that it was certified by an independent certifier. Additionally, the Commission had to examine the process by which the agreement was negotiated to confirm it was done in good faith.

In reaching its decision, the Commission reviewed the negotiation process, the terms of the agreement, and the evidence provided by both parties. It found that the agreement was negotiated in good faith and that the process complied with the relevant provisions of the Act. The Commission was satisfied that the agreement met the 'better off overall test' and did not contravene any minimum entitlements. Furthermore, it was determined that the agreement was fairly drafted and appropriately certified. Consequently, the Commission approved the proposed agreement, finding it to be fair and meeting all the necessary legal standards for approval.

The Fair Work Commission approved the proposed Aluminium and Glass Enterprise Agreement 2020-2023 between CLAD Carpentry Pty Ltd and the CFMEU. The Commission found that the agreement was appropriately negotiated, fairly drafted, and met all legal requirements for approval under the Fair Work Act. This decision ensures that the employees covered by the agreement will have terms and conditions that are fair and compliant with the Act, while also balancing the interests of the employer.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established