Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 2366

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/2324)

MKW TRADES PTY LTD AS TRUSTEE FOR MKW FAMILY TRUST T/AS MKW CONSTRUCTION GROUP AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS ALUMINIUM & GLASS ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 19 JULY 2022

Application for approval of the MKW TRADES PTY LTD AS TRUSTEE FOR MKW FAMILY TRUST T/As MKW CONSTRUCTION GROUP and the CFMEU (Victorian Construction and General Division) Subcontractors Aluminium & Glass Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the MKW TRADES PTY LTD AS TRUSTEE FOR MKW FAMILY TRUST T/As MKW CONSTRUCTION GROUP and the CFMEU (Victorian Construction and General Division) Subcontractors Aluminium & Glass 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 26 July 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 application before the Fair Work Commission was made by the MKW Trades Pty Ltd as trustee for the MKW Family Trust, trading as MKW Construction Group, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) (Victorian Construction and General Division) Subcontractors Aluminium & Glass Enterprise Agreement 2020-2023. The parties sought the Commission's approval for the proposed enterprise agreement. The dispute centered around the terms of the agreement and its compliance with the requirements of the Fair Work Act 2009.

The legal issues the court had to decide were whether the proposed enterprise agreement complied with the procedural and substantive requirements set out in the Fair Work Act. This included ensuring that the agreement had been fairly negotiated, that it contained the appropriate minimum entitlements, and that it met the specific criteria for approval as set out in the legislation. The court also needed to consider whether the agreement was in the best interests of the employees covered by it.

The Fair Work Commission found that the proposed enterprise agreement was appropriately negotiated and contained the requisite minimum entitlements. The Commission concluded that the agreement was fair and reasonable and was in the best interests of the employees. The Commission noted that the agreement had been developed through a process that involved genuine consultation and negotiation between the parties, and that it provided for fair and equitable terms for the employees. The Commission was satisfied that all procedural and substantive requirements had been met, and therefore approved the agreement.

The Fair Work Commission approved the proposed enterprise agreement between MKW Trades Pty Ltd as trustee for the MKW Family Trust, trading as MKW Construction Group, and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Aluminium & Glass Enterprise Agreement 2020-2023. The Commission found that the agreement was fairly negotiated, contained the necessary minimum entitlements, and was in the best interests of the employees. The agreement was approved and will now be binding on the parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established