Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 634

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/329)

NATIONAL CIVIL & FOUNDATIONS PTY LTD AS TRUSTEE FOR THE B & R NATIONAL TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Piling Enterprise Agreement 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 27 FEBRUARY 2023

Application for approval of the NATIONAL CIVIL & FOUNDATIONS PTY LTD AS TRUSTEE FOR THE B & R NATIONAL TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Piling Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the NATIONAL CIVIL & FOUNDATIONS PTY LTD AS TRUSTEE FOR THE B & R NATIONAL TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Piling 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 6 March 2023. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and the National Civil & Foundations Pty Ltd as trustee for the B & R National Trust. They sought approval of the Subcontractors Piling Enterprise Agreement 2020-2023. The matter was heard in the Fair Work Commission, an Australian workplace relations tribunal. The union and the employer had entered into an enterprise agreement which sought to regulate the employment conditions of subcontractors engaged in piling work. The agreement included provisions that were contentious, leading to the need for formal approval by the Commission.

The primary legal issue before the Commission was whether the provisions of the enterprise agreement were compliant with the Fair Work Act 2009 and the Fair Work (Registered Organisations) Act 2009. Specifically, the Commission needed to determine if the agreement met the requirements for "registration" under the Fair Work Act, which involves ensuring the agreement is "better off overall" for the employees covered by it. Additionally, the Commission had to consider whether the agreement was "freely and fairly" negotiated between the parties and whether it complied with the "good faith" obligations imposed by the legislation.

The Commission examined the provisions of the agreement and the submissions made by both parties. It found that the agreement was fairly negotiated and met the "better off overall" test. The Commission also concluded that the agreement complied with the good faith obligations and did not contain any unfair terms. Therefore, the Commission approved the Subcontractors Piling Enterprise Agreement 2020-2023. The decision was made on the basis that the agreement provided for a fair and reasonable set of terms and conditions for the employees involved.

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