Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 366

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/165)

ROSE AND TAI EXCAVATIONS PTY LTD T/As KARPEAR GROUP and the CFMEU (Victorian Construction and General Division) Subcontractors Fencing Enterprise Agreement 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	MELBOURNE, 10 FEBRUARY 2023

Application for approval of the ROSE AND TAI EXCAVATIONS PTY LTD T/As KARPEAR GROUP and the CFMEU (Victorian Construction and General Division) Subcontractors Fencing Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the ROSE AND TAI EXCAVATIONS PTY LTD T/As KARPEAR GROUP and the CFMEU (Victorian Construction and General Division) Subcontractors Fencing 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.205(2) 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 17 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

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and ROSE AND TAI EXCAVATIONS PTY LTD T/As KARPEAR GROUP (Karpear) applied for the approval of the Subcontractors Fencing Enterprise Agreement 2020-2023. The dispute centred on the terms and conditions of employment for fencing subcontractors engaged by Karpear. The Commission had to determine whether the proposed agreement met the legal requirements under the Fair Work Act 2009.

The primary legal issues addressed by the Commission were whether the agreement contained all the 'protected actions' as defined by the Fair Work Act and whether it complied with the 'better off overall test'. The protected actions include minimum rates of pay, maximum weekly hours, leave entitlements, and other conditions of employment. The better off overall test requires that the agreement must not disadvantage employees compared to their existing conditions.

The Commission found that the agreement satisfied all the protected actions and met the better off overall test. It concluded that the agreement provided fair and reasonable terms for the employees, ensuring they were not disadvantaged. The Commission also noted that the agreement contained provisions for good faith bargaining and dispute resolution, which were in line with the principles of the Fair Work Act. The application for approval was therefore granted, and the agreement was registered.

The Commission ordered that the Subcontractors Fencing Enterprise Agreement 2020-2023 be approved and registered under the Fair Work Act. The agreement would apply to fencing subcontractors engaged by Karpear and would be effective from the date of registration. This decision ensures that the terms and conditions of employment for these workers are legally recognised and protected.

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