Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 4081

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/4730)

ROSSCRETE CONCRETE PUMPING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONCRETE PUMPING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	MELBOURNE, 24 NOVEMBER 2022

Application for approval of the ROSSCRETE CONCRETE PUMPING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Pumping Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the ROSSCRETE CONCRETE PUMPING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Pumping 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.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, ROSSCRETE CONCRETE PUMPING PTY LTD, applied to the Fair Work Commission for the approval of the Subcontractors Concrete Pumping Enterprise Agreement 2020-2023 between the applicant and the CFMEU (Victorian Construction and General Division). The application was made under section 233 of the Fair Work Act 2009. The applicant contended that the agreement would provide for the fair and efficient management of the workforce while ensuring that the workforce was protected from unfair dismissal.

The primary legal issue before the Commission was whether the agreement contained provisions that were contrary to the public interest or that failed to provide for the fair and efficient management of the workforce. The Commission had to determine if the agreement contained provisions that were not in accordance with the objects of the Fair Work Act, including provisions that were not in the best interests of the employees or that failed to provide for the fair and efficient management of the workforce.

The Commission found that the agreement contained provisions that were contrary to the public interest and that failed to provide for the fair and efficient management of the workforce. The Commission determined that certain provisions in the agreement, which related to the classification of employees, were not in accordance with the objects of the Fair Work Act. The Commission found that these provisions did not provide for the fair and efficient management of the workforce and were not in the best interests of the employees. As a result, the Commission did not approve the agreement.

The Commission did not grant the application for the approval of the Subcontractors Concrete Pumping Enterprise Agreement 2020-2023. The Commission found that the agreement contained provisions that were contrary to the public interest and that failed to provide for the fair and efficient management of the workforce. The Commission did not approve the agreement and directed the parties to negotiate a new agreement that complied with the requirements 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