Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 4045

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/4651)

NEXT GENERATION CONCRETE PUMPING (VIC) PTY LTD AS TRUSTEE FOR THE NEXT GENERATION CONCRETE PUMPING (VIC) TRUST 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 NEXT GENERATION CONCRETE PUMPING (VIC) PTY LTD AS TRUSTEE FOR THE NEXT GENERATION CONCRETE PUMPING (VIC) TRUST 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 NEXT GENERATION CONCRETE PUMPING (VIC) PTY LTD AS TRUSTEE FOR THE NEXT GENERATION CONCRETE PUMPING (VIC) TRUST 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

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union applied for the approval of the Next Generation Concrete Pumping (Vic) Pty Ltd as Trustee for the Next Generation Concrete Pumping (Vic) Trust and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Pumping Enterprise Agreement 2020-2023. The dispute centred around the terms of the proposed enterprise agreement, with the union seeking approval for its provisions while the employer argued against certain clauses.

The primary legal issue before the Commission was whether the proposed enterprise agreement met the statutory requirements under the Fair Work Act 2009, particularly in terms of its compliance with the better off overall test (BOOT). The employer challenged specific clauses on the grounds that they did not meet this test, while the union argued that the agreement was fair and balanced. The Commission also needed to consider whether the agreement provided for the proper operation of the business and whether it adhered to the Fair Work (Registered Organisations) Act 2009.

After reviewing the submissions from both parties, the Commission found that the proposed agreement met the statutory requirements for approval. It determined that the agreement was fair and balanced, meeting the BOOT, and that it provided for the proper operation of the business. The Commission also concluded that the agreement adhered to the relevant legislative provisions. Consequently, the application for approval was granted, and the agreement was approved as a registered agreement.

The Commission issued a certificate approving the proposed enterprise agreement, which became effective from the date of the decision. This outcome allowed the agreement to be registered and enforceable under the Fair Work Act, providing a framework for the employment relationship between the parties for the specified period.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established