Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 4047

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/4650)

KAKO SI CONSTRUCTION PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CLADDING INSTALLATION ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 21 NOVEMBER 2022

Application for approval of the KAKO SI CONSTRUCTION PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Cladding Installation Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the KAKO SI CONSTRUCTION PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Cladding Installation 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, 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 Fair Work Commission involved an application for the approval of a specific enterprise agreement between Kako Si Construction Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Cladding Installation Enterprise Agreement 2020-2023. The union sought to have the agreement approved under the Fair Work Act 2009, which provides a framework for the creation of enterprise agreements that are fair and balanced. The dispute centred on whether the agreement met the legal standards for approval, including compliance with the procedural requirements and fairness obligations stipulated in the Act.

The legal issues that the Commission had to address included whether the union had properly certified the agreement, whether the agreement complied with the procedural requirements set out in the Fair Work Act, and whether the terms of the agreement were fair and reasonable. Additionally, the Commission needed to consider whether the agreement contained any terms that could be deemed unlawful or contrary to public policy.

In reaching its decision, the Commission examined the evidence presented by the union and the employer regarding the certification process and the negotiation of the agreement. The Commission also considered the fairness of the agreement's terms, including wages, conditions, and other employment-related matters. The Commission found that the union had appropriately certified the agreement and that the procedural requirements of the Act had been followed. Furthermore, the Commission determined that the terms of the agreement were fair and reasonable, and did not contravene any provisions of the Act or public policy.

Consequently, the Fair Work Commission approved the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Cladding Installation Enterprise Agreement 2020-2023, making it a legally binding agreement between the parties. The decision underscored the importance of adhering to the Fair Work Act's requirements and the need for enterprise agreements to be fair and balanced for all parties involved.

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