Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 3641

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/4300)

LAWLER BRICKLAYING PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Brick laying Enterprise Agreement 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	MELBOURNE, 24 OCTOBER 2022

Application for approval of the LAWLER BRICKLAYING PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Brick laying Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the LAWLER BRICKLAYING PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Brick laying 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 31 October 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 by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Lawler Bricklaying Pty Ltd for the approval of the Subcontractors Brick laying Enterprise Agreement 2020-2023. The dispute was heard in the Fair Work Commission, Australia's industrial relations tribunal. The application was contested by several other parties, including an association representing subcontractors in the industry, who argued that the agreement unfairly favoured the union and its members at the expense of subcontractors.

The legal issues before the Commission centred on whether the proposed enterprise agreement met the requirements of the Fair Work Act 2009. Specifically, the Commission needed to determine if the agreement was "independent" of any party, whether it complied with the "better off overall test," and if it adhered to the "genuine agreement test." The Commission also had to consider if the agreement contained provisions that were contrary to public policy or that would have an unreasonable impact on the parties' bargaining power.

The Commission found that the agreement was independent and complied with the better off overall and genuine agreement tests. While the Commission acknowledged that the agreement included provisions that were potentially unfavourable to subcontractors, it concluded that these provisions were necessary to address existing imbalances in the industry and did not contravene public policy. The Commission determined that the proposed agreement was in the best interests of the parties involved and approved it accordingly.

The Commission's final orders included the approval of the Subcontractors Brick laying Enterprise Agreement 2020-2023, with specific conditions attached to ensure ongoing monitoring and reporting on the agreement's impact on the industry. The Commission also directed that a review of the agreement be conducted after two years, to assess its ongoing effectiveness and to make any necessary adjustments.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established