Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 4311

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/5081)

NUSKE CONCRETE CUTTING PTY LTD T/As NATIONAL CONCRETE CUTTING 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, 15 DECEMBER 2022

Application for approval of the NUSKE CONCRETE CUTTING PTY LTD T/As NATIONAL CONCRETE CUTTING 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 NUSKE CONCRETE CUTTING PTY LTD T/As NATIONAL CONCRETE CUTTING 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 22 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, NUSKE CONCRETE CUTTING PTY LTD trading as NATIONAL CONCRETE CUTTING, sought approval of the 2020-2023 Enterprise Agreement with the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Sawing and Drilling. The respondent, the Construction, Forestry, Maritime, Mining and Energy Union, opposed the application, raising concerns over certain provisions. The matter was heard in the Fair Work Commission.

The central legal issues revolved around whether the agreement's provisions met the Fair Work Act's standards for enterprise agreements, including whether the agreement was made in good faith and whether it contained the necessary minimum terms and conditions. The dispute also focused on specific clauses regarding shift patterns, penalty rates, and the scope of the agreement's application.

The Commission examined the evidence and submissions from both parties, assessing whether the agreement was made in good faith and if it contained all the required minimum terms. The Commission found that the agreement was made in good faith and that all required minimum terms were included. The Commission also determined that the specific clauses challenged by the respondent did not contravene the Fair Work Act. Consequently, the application was approved.

The Fair Work Commission approved the 2020-2023 Enterprise Agreement between NUSKE CONCRETE CUTTING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Sawing and Drilling. The Commission's decision confirmed the agreement's validity, finding it compliant with the Fair Work Act and made in good faith.

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