Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 3723

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/4312)

RAPID METAL DEVELOPMENTS (AUSTRALIA) PROPRIETY LIMITED T/As RMD AUSTRALIA and the CFMEU (Victorian Construction and General Division) Subcontractors Scaffold Yard Enterprise Agreement 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	MELBOURNE, 25 OCTOBER 2022

Application for approval of the RAPID METAL DEVELOPMENTS (AUSTRALIA) PROPRIETY LIMITED T/As RMD AUSTRALIA and the CFMEU (Victorian Construction and General Division) Subcontractors Scaffold Yard Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the RAPID METAL DEVELOPMENTS (AUSTRALIA) PROPRIETY LIMITED T/As RMD AUSTRALIA and the CFMEU (Victorian Construction and General Division) Subcontractors Scaffold Yard 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 1 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 approval of the Rapid Metal Developments (Australia) Proprietary Limited t/as RMD Australia and the CFMEU (Victorian Construction and General Division) Subcontractors Scaffold Yard Enterprise Agreement 2020-2023. The application was made under section 231 of the Fair Work Act 2009, and the matter was heard by a delegate of the Commission. The dispute involved the terms and conditions of employment for scaffolders working at RMD Australia.

The primary legal issue the Commission had to resolve was whether the proposed enterprise agreement was in compliance with the provisions of the Fair Work Act 2009, particularly regarding the procedural fairness in its negotiation and the substantive fairness of its terms. The Commission needed to ensure that the agreement met the requirements for being a "better off overall test" (BOOT) agreement, meaning that it should provide employees with a net benefit in comparison to the applicable award or registered agreement.

In its decision, the Commission carefully examined the negotiation process and the content of the agreement. It found that the agreement was negotiated in good faith and that all procedural requirements were satisfied. The Commission also considered the fairness of the terms, including wages, hours of work, leave entitlements, and other conditions. After thorough analysis, the Commission concluded that the agreement met the BOOT and was therefore fair and reasonable. Consequently, the Commission approved the enterprise agreement under section 231 of the Fair Work Act 2009. The agreement now governs the employment conditions for scaffolders at RMD Australia for the specified period.

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