Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 4409

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/5132)

TECHSEA CONSTRUCTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Cladding Installation Enterprise Agreement 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 19 DECEMBER 2022

Application for approval of the TECHSEA CONSTRUCTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Cladding Installation Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the TECHSEA CONSTRUCTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Cladding 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 26 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 applicant, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), sought the court's approval for the Subcontractors Cladding Installation Enterprise Agreement 2020-2023 between Techsea Constructions Pty Ltd and the CFMEU (Victorian Construction and General Division). The agreement, which was intended to cover employees working in the cladding installation sector, was brought before the Fair Work Commission to ensure compliance with the Fair Work Act 2009. The opposition to the agreement came from Techsea Constructions Pty Ltd, which raised concerns regarding the terms and conditions outlined in the proposed agreement.

The legal issues before the court centred on whether the agreement met the requirements of the Fair Work Act and whether it was fair and reasonable in all its terms. The court had to determine if the agreement provided for fair and reasonable terms and conditions, including wages and other remuneration, hours of work, and leave entitlements. The court also had to consider if the agreement complied with the good faith bargaining provisions and if the agreement was in the best interests of the employees it was intended to cover.

The Fair Work Commission, after reviewing the submissions and evidence from both parties, found that the agreement was fair and reasonable in all its terms. The court considered that the agreement provided for adequate wage rates and conditions of employment, taking into account the specific nature of the cladding installation work. The court further found that the agreement was the result of good faith bargaining and was in the best interests of the employees it was intended to cover. As a result, the court approved the Subcontractors Cladding Installation Enterprise Agreement 2020-2023.

The final orders of the court were that the Subcontractors Cladding Installation Enterprise Agreement 2020-2023 between Techsea Constructions Pty Ltd and the CFMEU (Victorian Construction and General Division) be approved and registered under the Fair Work Act 2009. The agreement, which will be in effect from 1 July 2020 until 30 June 2023, will govern the terms and conditions of employment for employees working in the cladding installation sector 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