Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 3128

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/3614)

THREE OVER THREE PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Remedial Concrete and Access Flooring Enterprise Agreement 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 9 SEPTEMBER 2022

Application for approval of the THREE OVER THREE PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Remedial Concrete and Access Flooring Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the THREE OVER THREE PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Remedial Concrete and Access Flooring 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 16 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

The case before the court was an application for the approval of the Three Over Three Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Remedial Concrete and Access Flooring Enterprise Agreement 2020-2023. The primary issue at hand was whether the agreement met the necessary requirements to be approved by the court under the Fair Work Act 2009. This involved examining the fairness of the agreement, its compliance with the legislative framework, and whether it was genuinely intended to be a bargaining agreement between the employer and the union.

The court considered various factors to determine the fairness of the agreement. These included the process by which the agreement was negotiated, the content of the agreement itself, and the extent to which it provided for the protection of employees' rights and interests. The court also assessed whether the agreement had been made in good faith and whether it complied with the minimum standards set out in the Fair Work Act. Additionally, the court examined whether the agreement was genuinely intended to be a bargaining agreement between the employer and the union, and whether it had been genuinely agreed upon by the parties involved.

Upon thorough examination, the court found that the agreement was fair and compliant with the relevant legislative requirements. The court was satisfied that the agreement had been negotiated in good faith, provided adequate protection for employees, and met the minimum standards set out in the Fair Work Act. The court also determined that the agreement was genuinely intended to be a bargaining agreement and had been genuinely agreed upon by the parties. As a result, the court approved the agreement under section 233 of the Fair Work Act.

The final order of the court was the approval of the Three Over Three Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Remedial Concrete and Access Flooring Enterprise Agreement 2020-2023, with effect from the date of the order. This approval ensures that the agreement will be legally binding on the parties and will govern the employment conditions of the employees covered by the agreement for the duration of its term.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established