Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 675

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/406)

PROSTAR CONSTRUCTION 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 LEE	MELBOURNE, 6 MARCH 2023

Application for approval of the PROSTAR CONSTRUCTION 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 PROSTAR CONSTRUCTION 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, 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 13 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 applied for the approval of the PROSTAR CONSTRUCTION PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023. The dispute arose from negotiations between the parties regarding terms and conditions of employment for carpentry and joinery subcontractors employed by PROSTAR. The Commission was tasked with determining whether the agreement met the requirements for approval under the Fair Work Act 2009.

The primary legal issues before the Commission were whether the agreement complied with the procedural and substantive requirements for approval. Procedurally, the Commission examined if the agreement was genuinely negotiated and if the necessary majority of employees had agreed to the terms. Substantively, the Commission had to assess whether the agreement included terms that were not contrary to public policy or that unfairly discriminated against employees. Additionally, the Commission considered whether the agreement contained provisions that were inconsistent with the National Employment Standards or the applicable awards.

The Commission found that the agreement was genuinely negotiated and supported by a sufficient majority of employees. It also held that the terms of the agreement did not contravene public policy or unfairly discriminate against employees. However, the Commission identified some provisions that were inconsistent with the National Employment Standards, such as the notice periods for termination of employment. The Commission exercised its discretion to approve the agreement with modifications to ensure compliance with the National Employment Standards. These modifications included adjusting the notice periods for termination to align with the standards.

The Fair Work Commission approved the PROSTAR CONSTRUCTION PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023, subject to the modifications made to the notice periods for termination. The modifications were intended to ensure the agreement complied with the National Employment Standards. The parties were directed to implement the approved agreement, incorporating the modifications, within the specified timeframe.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established