Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 4457

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/5175)

SBS - SCARPACI BUILDING SERVICES PTY LTD AS TRUSTEE FOR THE SCARPACI FAMILY TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Installation Enterprise Agreement 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 21 DECEMBER 2022

Application for approval of the SBS - SCARPACI BUILDING SERVICES PTY LTD AS TRUSTEE FOR THE SCARPACI FAMILY TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Installation Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the SBS - SCARPACI BUILDING SERVICES PTY LTD AS TRUSTEE FOR THE SCARPACI FAMILY TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Installation 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 28 December 2022. 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 case involved an application for the approval of the subcontractor installation enterprise agreement between the Scarpaci Building Services Pty Ltd as trustee for the Scarpaci Family Trust and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The application was heard in the Fair Work Commission, the tribunal responsible for regulating Australian industrial relations and workplace laws.

The central legal issue before the Commission was whether the proposed enterprise agreement met the statutory requirements under the Fair Work Act 2009. This included assessing whether the agreement contained the minimum terms and conditions mandated by the Act, whether it was free from any prohibited content, and if it complied with procedural requirements such as the notice period and the right to object by employees. Additionally, the Commission needed to determine if the agreement had been made fairly and in good faith.

The Commission thoroughly reviewed the agreement, considering submissions from both parties. It found that the agreement was comprehensive and adhered to the mandatory minimum terms and conditions, including provisions for wages, hours of work, and other employment-related matters. The Commission also concluded that the agreement was free from prohibited content and that all procedural requirements had been met. Importantly, the Commission determined that the agreement had been negotiated in good faith and fairly reflected the interests of both parties. Based on this, the Commission approved the subcontractor installation enterprise agreement.

In light of the findings, the Fair Work Commission granted the application and approved the enterprise agreement, which is now legally binding on the parties involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established