Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 1776

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/1516)

ESK DEVELOPMENT PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Steelfixing Enterprise Agreement 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 31 MAY 2022

Application for approval of the ESK DEVELOPMENT PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Steelfixing Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the ESK DEVELOPMENT PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Steelfixing 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 7 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

The matter before the Fair Work Commission involved an application by ESK Development Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) (Victorian Construction and General Division) Subcontractors Steelfixing Enterprise Agreement 2020-2023. The applicant, ESK Development, sought the Commission's approval of the proposed enterprise agreement, which outlined terms and conditions for employees engaged by subcontractors in the steel fixing industry. The CFMEU represented the interests of the employees.

The primary legal issue for the Commission to decide was whether the proposed enterprise agreement met the statutory requirements for approval under the Fair Work Act 2009. Specifically, the Commission had to determine whether the agreement provided for minimum wages and conditions, and whether it contained any unfair provisions that would warrant refusal of approval. The Commission also needed to consider whether the agreement was genuinely negotiated between the parties and whether it complied with other relevant provisions of the Fair Work Act.

In assessing the application, the Commission examined the terms of the proposed agreement, including its provisions on wages, leave entitlements, and other employment conditions. The Commission found that the agreement provided for minimum wages and conditions that were consistent with the Fair Work Act. The Commission also determined that the agreement was genuinely negotiated between the parties, as evidenced by the submissions and documentation provided. After reviewing the agreement for any unfair provisions, the Commission concluded that there were no such provisions that would warrant refusal of approval. The Commission therefore approved the proposed enterprise agreement, recognising it as a lawful and fair agreement between the parties.

The Fair Work Commission approved the ESK Development Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Steelfixing Enterprise Agreement 2020-2023, effective from 1 March 2020, for a period of three years. This decision confirms the validity and enforceability of the agreement, ensuring that the terms and conditions set out in the agreement are applicable to the relevant employees and employers.

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