Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 2749

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/3240)

ENGINEERING ALLIANCE PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS ARCHITECTURAL FEATURES AND FITTINGS ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 15 AUGUST 2022

Application for approval of the ENGINEERING ALLIANCE PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the ENGINEERING ALLIANCE PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings 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 22 August 2022. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

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, on behalf of the Engineering Alliance Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors, sought approval of the Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023. The application was made under section 230 of the Fair Work Act 2009, which allows for the registration of an enterprise agreement if the Commission is satisfied it meets certain conditions. These include the agreement not being contrary to public policy, containing a good-faith bargaining declaration, and meeting the requirements of the "better-off-overall test".

The legal issues the Commission was required to determine included whether the agreement met the good-faith bargaining declaration requirements, whether the parties had genuinely attempted to reach an agreement through direct negotiations, and whether the agreement was consistent with public policy and met the better-off-overall test. The Commission had to carefully examine the bargaining records, the terms of the agreement, and the evidence provided by the parties to ensure that the agreement was fair and reasonable. Additionally, the Commission needed to assess whether the agreement would provide employees with a better outcome than if no agreement had been made.

After a thorough examination of the evidence and the application, the Commission concluded that the agreement met the requirements of the Act. The Commission found that the parties had engaged in good-faith bargaining and that the agreement contained all the necessary provisions, including the good-faith bargaining declaration. The Commission was satisfied that the agreement was not contrary to public policy and that it met the better-off-overall test. As a result, the Commission approved the Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023 and registered it under the Fair Work Act 2009.

The Commission's decision was based on a detailed analysis of the bargaining records, the terms of the agreement, and the evidence provided by the parties. The Commission found that the agreement provided a fair and reasonable outcome for the employees and that it met all the statutory requirements. The Commission's decision provides guidance for future enterprise agreements and ensures that the process for approving agreements is fair and transparent.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established