Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 3481

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/4099)

LUBECA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 11 OCTOBER 2022

Application for approval of the LUBECA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the LUBECA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork 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 18 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 court involved an application for the approval of an enterprise agreement between Lubeca Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The dispute centred around the proposed Subcontractors Formwork Enterprise Agreement 2020-2023, and whether it complied with the necessary statutory requirements for registration under the Fair Work Act 2009.

The central legal issues that the court had to determine were whether the agreement contained provisions that were contrary to public policy, and whether it complied with the mandatory requirements of the Fair Work Act. Specifically, the court examined whether the agreement met the criteria for "better off overall" and "no worse off overall" for the employees covered by the agreement. The court also had to ensure that the agreement did not contravene any provisions of the Fair Work Act, including those relating to unfair dismissal and termination of employment.

In its reasoning, the court considered the submissions made by both parties and examined the provisions of the proposed agreement in detail. The court found that the agreement did not contain any provisions that were contrary to public policy. It also determined that the agreement met the "better off overall" test for all employees, and that no employee would be worse off under the terms of the agreement. Furthermore, the court was satisfied that the agreement complied with all the mandatory requirements of the Fair Work Act, including those relating to unfair dismissal and termination of employment.

The court approved the Subcontractors Formwork Enterprise Agreement 2020-2023 and made an order that it be registered under the Fair Work Act. The agreement is now legally binding on the parties involved and will govern the employment conditions of the employees covered by the agreement for the period 2020-2023.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established