Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 3593

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/4184)

AUSTRAL RIGGING PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector Enterprise Agreement 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	MELBOURNE, 17 OCTOBER 2022

Application for approval of the AUSTRAL RIGGING PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the AUSTRAL RIGGING PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector 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 24 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 matter before the Fair Work Commission involved an application for approval of the AUSTRAL RIGGING PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector Enterprise Agreement 2020-2023. The application was brought by the union, which sought to have the agreement approved under section 234 of the Fair Work Act 2009. The company, Austral Rigging, contested the application, arguing that the agreement was not in the best interests of the employees, as it did not provide for adequate consultation on changes to work arrangements.

The primary legal issue before the Commission was whether the agreement was appropriate and met the statutory criteria for approval, particularly in terms of its provisions for consultation and flexibility. The Commission had to consider whether the agreement facilitated fair and efficient workplace relations and whether it provided an appropriate balance between the rights of employers and employees. Additionally, the Commission needed to ensure that the agreement did not prejudice the right of employees to take protected industrial action.

In reaching its decision, the Fair Work Commission examined the provisions of the agreement and assessed whether they met the criteria set out in the Fair Work Act. The Commission noted that the agreement provided for a comprehensive set of employment terms and conditions and included provisions for consultation on changes to work arrangements. However, the Commission found that the agreement did not adequately address the specific concerns raised by the company regarding the potential for prejudice to employees' right to take protected industrial action. After considering the submissions and evidence presented by both parties, the Commission concluded that the agreement was appropriate for approval, subject to certain modifications to ensure that it did not prejudice the right to protected action.

The Fair Work Commission approved the AUSTRAL RIGGING PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector Enterprise Agreement 2020-2023, subject to modifications. The modifications required the parties to include a clause that clarified the right of employees to take protected industrial action and ensured that the agreement did not unreasonably restrict this right. The Commission determined that, with these modifications, the agreement met the statutory criteria for approval and facilitated fair and efficient workplace relations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established