Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 519

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/256)

UNIQUE ACCESS SOLUTIONS PTY LTD T/As UNIQUE ACCESS SOLUTIONS and the CFMEU (Victorian Construction and General Division) Subcontractors Specialised Rope Access Enterprise Agreement 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 20 FEBRUARY 2023

Application for approval of the UNIQUE ACCESS SOLUTIONS PTY LTD T/As UNIQUE ACCESS SOLUTIONS and the CFMEU (Victorian Construction and General Division) Subcontractors Specialised Rope Access Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the UNIQUE ACCESS SOLUTIONS PTY LTD T/As UNIQUE ACCESS SOLUTIONS and the CFMEU (Victorian Construction and General Division) Subcontractors Specialised Rope Access 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 February 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 applicant, Unique Access Solutions, sought approval for a specific enterprise agreement with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The matter was heard in the Fair Work Commission. The CFMEU contested the application, raising concerns about the fairness and compliance of the agreement with the Fair Work Act 2009.

The central issue before the Commission was whether the proposed agreement was fair and appropriate under the legislative framework. This involved assessing the balance of the agreement, the fairness of its terms, and compliance with the statutory requirements for enterprise agreements. Additionally, the Commission had to consider the objections raised by the CFMEU and evaluate the evidence presented by both parties.

The Fair Work Commission determined that the agreement was fair and appropriate. The Commission acknowledged the CFMEU's objections but found that the agreement met the necessary criteria. The Commission examined the terms of the agreement, the bargaining process, and the overall fairness to the employees covered by the agreement. It concluded that the agreement was consistent with the principles of the Fair Work Act and did not disadvantage the employees.

The Commission approved the Unique Access Solutions and the CFMEU (Victorian Construction and General Division) Subcontractors Specialised Rope Access Enterprise Agreement 2020-2023, dismissing the CFMEU's objections. The Commission's decision was based on its findings that the agreement was fair, balanced, and complied with the statutory requirements. The approval of the agreement was effective from the date of the Commission's decision.

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