Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 799

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/563)

STENHOUSE COMMERCIAL PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS REMEDIAL CONCRETE AND ACCESS FLOORING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 21 MARCH 2023

Application for approval of the STENHOUSE COMMERCIAL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Remedial Concrete and Access Flooring Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the STENHOUSE COMMERCIAL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Remedial Concrete and Access Flooring 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 28 March 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 this case, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought approval for the Subcontractors Remedial Concrete and Access Flooring Enterprise Agreement 2020-2023 between STENHOUSE COMMERCIAL PTY LTD and the CFMEU (Victorian Construction and General Division). The matter was heard in the Fair Work Commission, an Australian federal statutory court responsible for resolving workplace disputes and overseeing the enforcement of workplace laws. The dispute centred on the validity and fairness of the proposed enterprise agreement, which was intended to regulate the employment conditions for subcontractors in the concrete and access flooring industry.

The key legal issues before the Commission were whether the proposed agreement complied with the requirements of the Fair Work Act 2009, specifically the provisions concerning the registration of enterprise agreements. The Commission had to determine whether the agreement was made free from coercion and whether it met the "better off overall test" to ensure that no party was disadvantaged by the agreement. Additionally, the Commission assessed whether the agreement contained the necessary procedural fairness and whether it was appropriately certified by an accredited bargaining representative.

The Fair Work Commission found that the proposed agreement did not meet the statutory requirements for approval. The Commission noted that there was a lack of procedural fairness in the agreement's certification process, as the CFMEU had not provided the necessary information to the Commission to demonstrate that the agreement had been fairly negotiated. Furthermore, the Commission determined that the agreement did not satisfy the better off overall test, as it potentially disadvantaged some employees by lowering their remuneration and conditions compared to what they had previously. Consequently, the Commission did not grant approval for the enterprise agreement.

The Fair Work Commission rejected the application for approval of the Subcontractors Remedial Concrete and Access Flooring Enterprise Agreement 2020-2023. The Commission's decision was based on procedural irregularities in the agreement's certification and the failure to meet the better off overall test. The Commission's order effectively prevents the enforcement of the agreement, and the parties must now either renegotiate the agreement to address the identified issues or seek alternative dispute resolution mechanisms to resolve their differences.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established