Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 4077

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/4737)

CALLEN CONSTRUCTIONS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS FORMWORK ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 24 NOVEMBER 2022

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

An application has been made for approval of an enterprise agreement known as the CALLEN CONSTRUCTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork 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 1 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 was heard by the Fair Work Commission, with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) applying for approval of the Enterprise Agreement between Callen Constructions Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors. The agreement sought to regulate the terms and conditions of employment for workers employed in the formwork sector by subcontractors of Callen Constructions. The dispute centred on whether the agreement complied with the relevant provisions of the Fair Work Act 2009.

The primary legal issue before the Commission was whether the agreement met the requirements of section 231 of the Fair Work Act, which mandates that an enterprise agreement must not have the effect of disadvantaging employees. Specifically, the Commission needed to determine if the agreement appropriately balanced the interests of both the employer and the employees. Another issue was whether the agreement covered all necessary terms and conditions of employment as stipulated by the Act.

The Commission found that the agreement was appropriately balanced and did not disadvantage employees. It noted that the agreement provided for fair wages and conditions that were in line with industry standards. Furthermore, the Commission determined that the agreement comprehensively covered all required terms and conditions of employment, including provisions for dispute resolution, health and safety, and training. As a result, the Commission approved the Enterprise Agreement, finding it to be fair and reasonable.

Consequently, the Fair Work Commission approved the Enterprise Agreement, ensuring that the terms and conditions of employment for workers in the formwork sector employed by subcontractors of Callen Constructions would be governed by this agreement. This decision underscores the importance of achieving a fair balance between the interests of employers and employees in enterprise agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established