Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 4161

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/4789)

ROCK SOLID KERB & CONCRETE PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONCRETE KERB AND CHANNEL ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	MELBOURNE, 29 NOVEMBER 2022

Application for approval of the ROCK SOLID KERB & CONCRETE PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Kerb and Channel Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the ROCK SOLID KERB & CONCRETE PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Kerb and Channel 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 6 December 2022. 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 involves an application for the approval of the ROCK SOLID KERB & CONCRETE PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Kerb and Channel Enterprise Agreement 2020-2023. The application was heard in the Fair Work Commission, which is the federal workplace relations tribunal in Australia. The dispute centred around whether the proposed enterprise agreement should be approved under the Fair Work Act 2009, given that it had been independently negotiated between the employer and the union representing the employees.

The primary legal issues the court had to resolve were whether the agreement met the requirements for independent negotiation as stipulated in the Fair Work Act, and whether it complied with the provisions for better off overall test (BOOT) and the public interest test. The court also had to consider the implications of the agreement on the employees, the employer, and the public, as well as the balance between the interests of the parties involved.

In reaching its decision, the court examined the negotiation process, the content of the agreement, and the impact on the parties. The court found that the agreement had been independently negotiated in good faith and that it met the BOOT and public interest tests. The court concluded that the agreement would provide a fair and reasonable outcome for the employees, the employer, and the public, and that it was in the public interest to approve the agreement. The court approved the enterprise agreement, finding that it met the legal requirements and was fair and reasonable in all the circumstances. The approval of the enterprise agreement will now be subject to the provisions of the Fair Work Act.

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