Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 2711

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/3209)

MELBCORE PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONCRETE SAWING AND DRILLING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 11 AUGUST 2022

Application for approval of the MELBCORE PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Sawing and Drilling Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the MELBCORE PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Sawing and Drilling 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 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

The case before the Fair Work Commission involved an application for the approval of a proposed enterprise agreement between MELBCORE PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Sawing and Drilling Enterprise Agreement 2020-2023. The central dispute centred on whether the proposed agreement met the statutory requirements for approval under the Fair Work Act 2009. The Fair Work Commission was tasked with determining if the agreement complied with the provisions necessary for its formal endorsement.

The court had to resolve several legal issues, including whether the proposed agreement was genuinely negotiated, if it adhered to the Fair Work Act's provisions, and if it was in the best interests of the employees it covered. Another key issue was whether the agreement complied with the 'better off overall test', ensuring that employees would be better off financially and in terms of working conditions compared to the applicable award or existing agreements. The court also needed to consider if the agreement complied with the procedural requirements, such as the provision of necessary information to employees and the holding of proper meetings.

After thorough examination of the agreement, the Fair Work Commission found that the proposed enterprise agreement met all the statutory requirements for approval. The court noted that the agreement was genuinely negotiated between the parties, complied with the provisions of the Fair Work Act, and satisfied the 'better off overall test'. The Commission was satisfied that the necessary information had been provided to employees and that the appropriate procedural steps had been followed. Therefore, the application for the approval of the enterprise agreement was successful.

The Fair Work Commission approved the MELBCORE PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Sawing and Drilling Enterprise Agreement 2020-2023. The agreement was declared to be in force from the date of the Commission's decision, binding both the employer and the employees covered by the agreement. The Commission's decision affirmed the validity and enforceability of the agreement, ensuring that the terms and conditions of employment for the relevant employees would be governed by the new enterprise agreement.

Construction, Forestry, Maritime, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established