Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 3922

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/4587)

TATE ASIA-PACIFIC PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS REMEDIAL CONCRETE AND ACCESS FLOORING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 15 NOVEMBER 2022

Application for approval of the TATE ASIA-PACIFIC PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Remedial Concrete and Access Flooring Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the TATE ASIA-PACIFIC PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Remedial Concrete and Access Flooring 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 22 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 sought approval for the TATE ASIA-PACIFIC PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Remedial Concrete and Access Flooring Enterprise Agreement 2020-2023. The dispute centred on whether the proposed agreement met the statutory requirements for approval under the Fair Work Act 2009. The Commission had to determine if the agreement was in the best interests of the employees, whether it was free from any improper influence or interference, and if it contained all the mandated minimum terms and conditions.

The legal issues before the Commission involved scrutinising the terms of the proposed agreement to ensure compliance with the Fair Work Act. Key among these was verifying whether the agreement provided for minimum wages and conditions, including provisions for leave, penalty rates, and the protection of employees' rights. The Commission also had to consider if the agreement was genuinely negotiated between the employer and the union, and if it was free from any coercion or undue influence. The court examined if the agreement contained adequate mechanisms for dispute resolution and if it adequately protected the rights and interests of the employees.

The Commission, after carefully reviewing the agreement, found that it complied with all the necessary statutory requirements. It was determined that the agreement provided for the mandated minimum terms and conditions and was free from any improper influence. The Commission approved the agreement, noting that it was in the best interests of the employees and contained adequate provisions for dispute resolution. The decision confirmed that the proposed enterprise agreement met all the legislative criteria for approval.

The Fair Work Commission approved the TATE ASIA-PACIFIC PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Remedial Concrete and Access Flooring Enterprise Agreement 2020-2023. The decision was made on the basis that the agreement was in the best interests of the employees, free from any improper influence, and contained all the required minimum terms and conditions. The Commission's approval signifies that the agreement is now legally binding and will govern the employment conditions for the relevant workers in the specified industry.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established