Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 367

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/154)

J&S CONCRETE CUTTING & DRILLING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONCRETE SAWING AND DRILLING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 9 FEBRUARY 2023

Application for approval of the J&S CONCRETE CUTTING & DRILLING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Sawing and Drilling Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the J&S CONCRETE CUTTING & DRILLING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Sawing and Drilling 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 16 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 matter before the Fair Work Commission involved an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) to approve a proposed Enterprise Agreement between J&S Concrete Cutting & Drilling Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Sawing and Drilling Enterprise Agreement 2020-2023. The application was necessary to ensure the agreement complied with the requirements of the Fair Work Act 2009. The legal issues centred on whether the agreement met the procedural and substantive fairness standards as outlined in the Act, including whether the agreement was genuinely negotiated and whether it provided for fair and reasonable terms and conditions of employment.

The Commission examined the evidence and submissions presented by both parties. It assessed whether the agreement was the product of genuine bargaining, considering factors such as the parties' conduct, the negotiation process, and the terms of the agreement. The Commission also considered whether the agreement was fair and reasonable, taking into account relevant industry benchmarks, the parties' bargaining power, and the agreement's compliance with minimum entitlements and other relevant standards. The Commission found that the agreement was the result of genuine negotiations and contained terms that were fair and reasonable, providing for adequate protections and benefits for the employees.

Following its analysis, the Commission approved the proposed Enterprise Agreement, confirming that it met the necessary criteria under the Fair Work Act. The approval ensures that the terms and conditions of employment for the employees of J&S Concrete Cutting & Drilling Pty Ltd are governed by the agreement, which now has legal effect. This decision provides certainty and stability for the parties and their employees, setting the terms of their employment for the duration of the agreement.

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