Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 335

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/128)

T & R CONTRACTORS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CARPENTRY AND JOINERY ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	MELBOURNE, 3 FEBRUARY 2023

Application for approval of the T & R CONTRACTORS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the T & R CONTRACTORS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery 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 10 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 for the approval of an enterprise agreement between T & R Contractors Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023. The application was brought before the Fair Work Commission. The central dispute centred around whether the proposed agreement met the requirements of the Fair Work Act 2009, specifically focusing on the agreement's fairness and the procedural correctness in its making. The union argued that the agreement was fair and properly negotiated, while the employer raised concerns over certain provisions' fairness and the process by which the agreement was reached.

The court had to determine if the agreement was made in good faith, involved genuine bargaining, and was fair in terms of its content and process. Additionally, the court assessed whether the agreement was consistent with the principles of the Fair Work Act and did not unfairly discriminate against any party. The court also considered the evidence provided by both parties regarding the negotiation process and the content of the agreement.

After evaluating the evidence and arguments presented, the Fair Work Commission found that the agreement was made in good faith, involved genuine bargaining, and was fair both in its content and the process by which it was negotiated. The Commission concluded that all parties had engaged in the negotiation process appropriately and that the agreement met the statutory requirements under the Fair Work Act. Therefore, the application for approval was granted, and the enterprise agreement was approved.

The Fair Work Commission's final order was that the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023 be approved as a registered agreement under the Fair Work Act 2009. This decision confirmed the agreement's validity and enforceability, thereby resolving the dispute in favour of the union.

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