Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 995

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/780)

CARNA CIVIL PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS FORMWORK ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 5 APRIL 2023

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

An application has been made for approval of an enterprise agreement known as the CARNA CIVIL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork 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 12 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

In the matter of an application for approval of the CARNA CIVIL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023, the Fair Work Commission was tasked with examining the proposed enterprise agreement. The applicant, CARNA CIVIL PTY LTD, sought to have the agreement approved under the Fair Work Act 2009. The application was opposed by the CFMEU (Victorian Construction and General Division). The dispute centred on whether the proposed enterprise agreement met the requirements for approval under the relevant industrial legislation.

The primary legal issue before the Commission was whether the proposed enterprise agreement complied with the statutory provisions of the Fair Work Act 2009. This involved examining whether the agreement was "free of prohibited content," met the "better off overall test" and adhered to other procedural requirements. The Commission also had to determine whether the agreement was negotiated in good faith and if the necessary processes for its approval had been followed correctly.

After considering the submissions from both parties and the evidence presented, the Commission concluded that the proposed enterprise agreement was free of prohibited content and met the requirements for approval. The Commission found that the agreement was negotiated in good faith and was likely to be better off overall for the employees covered by it. Additionally, the Commission was satisfied that all necessary procedural requirements had been met. Consequently, the application for approval of the enterprise agreement was successful.

As a result of the decision, the Fair Work Commission approved the CARNA CIVIL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023. The agreement will now be in effect for the specified period, providing a framework for the terms and conditions of employment for the relevant employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established