Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 3602

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/4206)

MC LABOUR SERVICES PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Tower Crane Riggers Labour Hire Enterprise Agreement 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	MELBOURNE, 18 OCTOBER 2022

Application for approval of the MC LABOUR SERVICES PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Tower Crane Riggers Labour Hire Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the MC LABOUR SERVICES PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Tower Crane Riggers Labour Hire 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 25 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 present case involves an application for the approval of the MC Labour Services Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Tower Crane Riggers Labour Hire Enterprise Agreement 2020-2023. The application was brought before the Fair Work Commission (FWC), which has the authority to approve such agreements if they comply with the Fair Work Act 2009. The dispute centered around the specifics of the proposed enterprise agreement, particularly in relation to the procedural and substantive fairness of the terms and conditions it contained.

The primary legal issues before the Commission were whether the enterprise agreement was fairly negotiated, if it contained terms that were procedurally and substantively fair, and if the agreement complied with the relevant legislative requirements. The Commission had to consider whether there was genuine bargaining between the parties, whether the agreement was free from any improper influence or pressure, and if the terms and conditions of the agreement were fair and reasonable. The Commission also had to assess whether the agreement met the criteria for 'better off overall and in the round' (BOOT) and whether it complied with the provisions of the Fair Work Act.

In reaching its decision, the FWC examined the evidence presented by both parties, including witness testimonies, procedural documents, and the terms of the proposed agreement. The Commission concluded that the agreement was fairly negotiated, free from any improper influence, and contained terms and conditions that were procedurally and substantively fair. The Commission found that the agreement met the BOOT criterion and complied with all relevant legislative provisions. As a result, the FWC approved the MC Labour Services Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Tower Crane Riggers Labour Hire Enterprise Agreement 2020-2023.

The final orders of the Commission were that the enterprise agreement be approved as a certified agreement under the Fair Work Act. The approved agreement would now be in effect from 1 July 2020 and would remain in force until 30 June 2023, unless otherwise terminated or replaced in accordance with the provisions of the Fair Work Act.

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