Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 3916

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/4528)

NIVEK GROUP PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS ALUMINIUM & GLASS ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 9 NOVEMBER 2022

Application for approval of the NIVEK GROUP PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Aluminium & Glass Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the NIVEK GROUP PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Aluminium & Glass 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 16 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 involved an application for approval of a proposed enterprise agreement between the Nivek Group Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Aluminium & Glass Enterprise Agreement 2020-2023. The application was heard in the Fair Work Commission of Australia. The legal issues before the Commission centred on whether the proposed agreement met the statutory requirements for enterprise agreements under the Fair Work Act 2009, including whether it had been fairly negotiated, whether it contained provisions that were not reasonably necessary to give effect to the agreement's objects, and whether it complied with the "better off overall test".

The Fair Work Commission considered the submissions and evidence from both parties, as well as relevant legislative provisions. The Commission determined that the agreement had been fairly negotiated and that all provisions were reasonably necessary to give effect to the agreement's objects. The Commission also found that the agreement met the better off overall test, as it provided for a fair and reasonable outcome for the employees covered by the agreement. The Commission approved the proposed enterprise agreement, subject to certain minor modifications.

As a result of the Commission's decision, the proposed enterprise agreement between the Nivek Group Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Aluminium & Glass Enterprise Agreement 2020-2023 was approved and registered with the Fair Work Commission. The agreement will now apply to the employees covered by the agreement and will provide for their terms and conditions of employment for the period 2020-2023.

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