Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 3224

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/3729)

HANDS ON PAVING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Kerb and Channel Enterprise Agreement 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 16 SEPTEMBER 2022

Application for approval of the HANDS ON PAVING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Kerb and Channel Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the HANDS ON PAVING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Kerb and Channel 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 23 September 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

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union sought approval of the HANDS ON PAVING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Kerb and Channel Enterprise Agreement 2020-2023. The agreement was submitted for approval under section 234 of the Fair Work Act 2009, and the Union argued it should be approved as a safety net agreement. The primary legal issue before the Commission was whether the proposed enterprise agreement constituted a safety net agreement. The Commission needed to determine if the agreement met the criteria for safety net approval, particularly whether it provided no less than the national minimum terms and conditions of employment and whether it provided for appropriate dispute resolution mechanisms.

The Commission examined the proposed agreement's terms and conditions, comparing them against the relevant award provisions and national minimum standards. The Commission also considered the adequacy of the dispute resolution mechanisms within the agreement. After careful consideration, the Commission determined that the proposed agreement did not meet the criteria for safety net approval. The Commission found that certain terms and conditions in the agreement were less favourable than those provided for in the relevant award, and therefore did not meet the safety net standard. Additionally, the Commission was not satisfied that the dispute resolution provisions were appropriate.

Consequently, the application for approval was rejected. The Fair Work Commission concluded that the proposed enterprise agreement did not meet the necessary standards for safety net approval and thus could not be approved under section 234 of the Fair Work Act 2009. The Commission's decision stands as a reminder of the stringent requirements for safety net agreements and the importance of ensuring that all terms and conditions meet or exceed national minimum standards.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established