Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 669

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/356)

SMG STRUCTURES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors

FORMWORK ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 1 MARCH 2023

Application for approval of the SMG STRUCTURES 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 SMG STRUCTURES 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, 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 8 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

The Fair Work Commission (FWC) was asked to approve the Subcontractors Formwork Enterprise Agreement 2020-2023 between SMG Structures Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) (Victorian Construction and General Division). The agreement proposed various terms and conditions for employees working on formwork projects in Victoria. The parties applied to the FWC for approval of the agreement, which would then become a registered agreement under the Fair Work Act 2009 (Cth). The legal issues before the FWC included whether the agreement complied with the relevant legislative requirements and if it met the "better off overall test" (BOOT). The BOOT requires that the proposed agreement must be at least as good as the applicable award or previous enterprise agreement, and that employees are not disadvantaged by the agreement.

The FWC found that the agreement was properly certified and met the requirements of the Fair Work Act. The FWC also considered the submissions from the parties and relevant stakeholders. The FWC concluded that the proposed agreement was fair and reasonable, met the BOOT, and did not contain any provisions that would be detrimental to the employees. The FWC noted that the agreement provided for fair wages and conditions, included dispute resolution mechanisms, and was negotiated in good faith. The FWC approved the agreement and it will now be a registered agreement under the Fair Work Act.

The final orders of the FWC were that the Subcontractors Formwork Enterprise Agreement 2020-2023 between SMG Structures Pty Ltd and the CFMEU (Victorian Construction and General Division) be approved and registered under the Fair Work Act. The agreement will apply to employees working on formwork projects in Victoria from 1 January 2020 to 31 December 2023. The FWC also noted that any disputes arising from the agreement would be subject to the dispute resolution processes outlined in the agreement.

Construction, Forestry, Maritime, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established