Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 3578

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/4209)

TOP UP LABOUR HIRE PTY LTD T/AS TOP UP LABOUR 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 TOP UP LABOUR HIRE PTY LTD T/As TOP UP LABOUR 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 TOP UP LABOUR HIRE PTY LTD T/As TOP UP LABOUR 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 applicant, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), sought approval of an enterprise agreement between TOP UP LABOUR HIRE PTY LTD trading as TOP UP LABOUR and the CFMEU (Victorian Construction and General Division) Subcontractors Tower Crane Riggers Labour Hire Enterprise Agreement 2020-2023. The matter was heard in the Fair Work Commission. The primary legal issue before the Commission was whether the enterprise agreement met the statutory requirements for approval under the Fair Work Act 2009. This involved assessing if the agreement was genuinely negotiated and if it contained all the required terms and conditions as mandated by the Act. The Commission also considered whether the agreement was likely to achieve a better outcome for the employees than would be achieved under the relevant award or safety net.

The Commission found that the enterprise agreement was genuinely negotiated between the parties, with evidence presented demonstrating that both parties had engaged in good faith bargaining. It was also established that the agreement contained all the necessary terms and conditions required by the Act, including provisions for wages, hours of work, and other employment conditions. The Commission further determined that the agreement was likely to achieve a better outcome for the employees, as it provided for improved wages and conditions compared to the applicable award. Therefore, the Commission approved the enterprise agreement, finding that it met all the statutory requirements for approval under the Fair Work Act 2009.

The Fair Work Commission approved the TOP UP LABOUR HIRE PTY LTD T/As TOP UP LABOUR and the CFMEU (Victorian Construction and General Division) Subcontractors Tower Crane Riggers Labour Hire Enterprise Agreement 2020-2023. This decision was based on the findings that the agreement was genuinely negotiated, contained all the required terms and conditions, and was likely to achieve a better outcome for the employees. The final orders included the approval of the enterprise agreement, effective from the date of the decision.

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