Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 829

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/553)

ELEMENT INSTALLS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CARPENTRY AND JOINERY ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	MELBOURNE, 20 MARCH 2023

Application for approval of the ELEMENT INSTALLS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the ELEMENT INSTALLS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery 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 27 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 the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union sought approval for the Element Installs Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023. The union argued that the proposed agreement would provide fair and reasonable terms for employees in the specified industries, while Element Installs Pty Ltd contended that certain provisions in the agreement were excessively burdensome and not in line with industry standards.

The central legal issues revolved around whether the proposed enterprise agreement met the requirements for approval under the Fair Work Act 2009. Specifically, the court had to determine if the agreement was fair and reasonable, and if it contained provisions that were inequitable or oppressive to employees or employers. Additionally, the court examined whether the agreement complied with the statutory obligations regarding minimum entitlements and the preservation of essential rights of employees.

The Fair Work Commission, after reviewing the submissions and evidence presented by both parties, concluded that the proposed agreement did meet the criteria for approval. The commission found that the agreement provided for fair and reasonable terms and conditions for employees, and that it did not contain any provisions that were deemed inequitable or oppressive. Furthermore, the commission confirmed that the agreement complied with the statutory obligations regarding minimum entitlements and the preservation of essential rights of employees. Consequently, the commission approved the Element Installs Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established