Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 570

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/352)

PROLINE FACADES 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, 28 FEBRUARY 2023

Application for approval of the PROLINE FACADES 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 PROLINE FACADES 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 7 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, acting on behalf of the employees, and PROLINE FACADES PTY LTD, a subcontractor in the construction industry, were involved in a dispute concerning the approval of a proposed enterprise agreement. The union sought approval for the PROLINE FACADES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023, which aimed to regulate the terms and conditions of employment for employees working under the agreement.

The primary legal issues before the commission were whether the proposed agreement met the requirements of the Fair Work Act 2009, including whether it was a "better off overall test" agreement, free from prohibited content, and appropriately registered. The commission had to determine if the agreement provided employees with a fair and reasonable set of terms and conditions, whether it contained any content that was prohibited under the Act, and if the agreement was appropriately registered as a protected action agreement.

The commission examined the evidence and submissions presented by both parties. It found that the proposed agreement provided employees with terms and conditions that were no worse than the relevant award or safety net, thereby satisfying the better off overall test. The commission also found that the agreement did not contain any prohibited content, and it was appropriately registered as a protected action agreement. Consequently, the commission approved the agreement, finding it to be in compliance with the requirements of the Fair Work Act 2009.

The final orders of the commission were that the PROLINE FACADES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023 be approved and registered as a protected action agreement, effective from the date of the decision. This decision provides clarity on the terms and conditions of employment for employees working under the agreement and ensures compliance with the relevant legislative framework.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established