Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 1858

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/1641)

DIAMOND CONCRETE SAWING PTY LTD T/AS DIAMOND CONCRETE SAWING 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
COMMISSIONER JOHNS	melbourne, 8 JUNE 2022

Application for approval of the DIAMOND CONCRETE SAWING PTY LTD T/As DIAMOND CONCRETE SAWING 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 DIAMOND CONCRETE SAWING PTY LTD T/As DIAMOND CONCRETE SAWING 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 15 June 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 matter of an application for approval of the DIAMOND CONCRETE SAWING PTY LTD T/As DIAMOND CONCRETE SAWING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Sawing and Drilling Enterprise Agreement 2020-2023, the Fair Work Commission was presented with a dispute between the applicant, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), and the other party, Diamond Concrete Sawing Pty Ltd. The crux of the dispute was the union's application for the approval of the enterprise agreement, which was to govern the terms and conditions of employment for subcontractors engaged in concrete sawing and drilling within the specified industry.

The legal issues before the Commission involved whether the proposed enterprise agreement met the statutory criteria for approval as set out in the Fair Work Act 2009. Key concerns included whether the agreement provided a safety net of minimum wages and conditions, ensured fair and reasonable terms, and adhered to procedural fairness. The Commission had to evaluate the balance between the rights of the employees and the operational needs of the employer, alongside the broader implications for the industry.

The Fair Work Commission, after thorough deliberation, found that the agreement was consistent with the statutory criteria. The Commission was satisfied that the agreement provided a safety net of minimum wages and conditions, was fair and reasonable, and complied with the procedural fairness requirements. The terms were deemed to be a product of genuine bargaining, and the Commission was satisfied that the agreement did not undermine the existing industrial relations framework. Therefore, the application for approval was granted.

The final orders included the approval of the DIAMOND CONCRETE SAWING PTY LTD T/As DIAMOND CONCRETE SAWING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Sawing and Drilling Enterprise Agreement 2020-2023, with the agreement to be registered and enforceable from the date of the Commission's decision.

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