Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 494

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/245)

STRUCTUREFORM (AUST) 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, 17 FEBRUARY 2023

Application for approval of the STRUCTUREFORM (AUST) 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 STRUCTUREFORM (AUST) 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 24 February 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 case involved an application by Structureform (Aust) Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) for the approval of their Enterprise Agreement. This agreement, which is set to cover the period from 2020 to 2023, pertains to the employment conditions of sub-contractors within the formwork industry. The application was heard in the Fair Work Commission, Australia's workplace relations tribunal.

The primary legal issues that the Commission needed to address were whether the proposed agreement met the requirements of the Fair Work Act 2009, specifically sections concerning the avoidance of unprotected industrial action, the protection of employees' rights, and the promotion of efficient and productive workplace relations. Furthermore, the Commission had to determine if the agreement was free from any provisions that might encourage unprotected industrial action or undermine the existing industrial relations framework.

In rendering its decision, the Commission examined the provisions of the agreement in detail. It found that the agreement contained clauses that were potentially capable of leading to unprotected industrial action, which contravened the Act. The Commission also considered the submissions made by the parties and the broader implications of the agreement for the industry. Ultimately, the Commission determined that the proposed agreement did not meet the necessary standards and did not approve it. The decision emphasised the importance of ensuring that enterprise agreements support efficient and productive workplace relations and protect the rights of all parties involved.

Construction, Forestry, Maritime, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established