Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 349

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/142)

R & B CIVIL SOLUTIONS PTY LTD AND THECFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS FORMWORK ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	MELBOURNE, 6 FEBRUARY 2023

Application for approval of the R & B Civil Solutions 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 R & B Civil Solutions Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023. 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, 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 13 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 recent case, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) applied for approval of the R & B Civil Solutions Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023. The matter was heard by the Fair Work Commission (FWC), Australia's workplace relations tribunal.

The primary legal issues before the FWC were whether the proposed enterprise agreement complied with the provisions of the Fair Work Act 2009 and whether it met the requirements for formal approval. The FWC needed to assess the agreement's adherence to the statutory framework governing enterprise agreements, including the necessity for good faith bargaining, the absence of prohibited content, and compliance with the 'better off overall test' (BOOT) to ensure that no party would be worse off financially.

The FWC examined the agreement's terms and conditions, ensuring that it contained only permissible matters as outlined by the Fair Work Act. The FWC also verified that the agreement was the product of genuine and meaningful negotiations between the parties. Furthermore, the FWC assessed whether the agreement met the BOOT, which requires that an enterprise agreement must not make employees worse off than their previous terms and conditions, and that it provides some employees with benefits that make them better off. Upon finding that the agreement met all the statutory requirements and passed the BOOT, the FWC approved the enterprise agreement.

The FWC's final orders were that the R & B Civil Solutions Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023 be approved and registered. This decision confirms the agreement as a legally binding instrument governing the employment terms between the parties for the specified period.

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