Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 4058

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/4648)

MELBOURNE SHOTCRETE SPECIALISTS 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, 21 NOVEMBER 2022

Application for approval of the MELBOURNE SHOTCRETE SPECIALISTS 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 MELBOURNE SHOTCRETE SPECIALISTS 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 28 November 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 before the court involved an application for the approval of the Melbourne Shotcrete Specialists Pty. Ltd. and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Concrete Pumping Enterprise Agreement 2020-2023. The applicant, the CFMEU, sought to have the enterprise agreement recognised and approved under the Fair Work Act 2009. The application was made to the Fair Work Commission, which is the body responsible for regulating enterprise agreements under Australian labour law.

The primary legal issue before the court was whether the enterprise agreement met the criteria for approval as set out in the Fair Work Act 2009. Specifically, the court had to consider whether the agreement complied with the requirements for good faith bargaining, whether it contained the necessary minimum terms and conditions, and whether it was free from any invalid provisions. The CFMEU argued that the agreement was fair and reasonable, while Melbourne Shotcrete Specialists Pty. Ltd. did not contest the application.

The Fair Work Commission found that the agreement was made in good faith and contained all the required minimum terms and conditions. The Commission also determined that the agreement did not contain any invalid provisions and was fair and reasonable. The Commission approved the agreement, noting that it provided for fair and reasonable terms and conditions for the employees covered by the agreement. The Commission also noted that the agreement was the product of genuine bargaining between the parties and was not imposed on the employees.

The Fair Work Commission approved the Melbourne Shotcrete Specialists Pty. Ltd. and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Pumping Enterprise Agreement 2020-2023. The agreement will now be registered and will apply to the employees covered by it. The decision of the Commission is final and binding on the parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established