Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 1763

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/1514)

A1 LEVELLING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Remedial Concrete and Access Flooring Enterprise Agreement 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 31 MAY 2022

Application for approval of the A1 LEVELLING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Remedial Concrete and Access Flooring Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the A1 LEVELLING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Remedial Concrete and Access Flooring 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 application before the Fair Work Commission was for the approval of the A1 Levelling Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Remedial Concrete and Access Flooring Enterprise Agreement 2020-2023. The dispute involved the terms and conditions of employment for workers in the concrete and access flooring industry under a specific enterprise agreement. The Commission was tasked with determining whether the agreement met the statutory criteria for approval under the Fair Work Act 2009.

The legal issues before the Commission included whether the agreement contained terms that were contrary to the provisions of the Fair Work Act, such as provisions that unfairly discriminated against employees or undermined the fundamental rights of workers. Additionally, the Commission had to consider whether the agreement was made in good faith and whether it provided for the genuine resolution of workplace issues. The application for approval was contested by the employer, who raised concerns about certain terms of the agreement, particularly those relating to wages and conditions.

In delivering its decision, the Commission found that the agreement contained several terms that were contrary to the Fair Work Act, including provisions that provided for wage rates below the applicable awards and that restricted the right of employees to take industrial action. The Commission noted that the agreement did not adequately protect the rights of workers and that it contained terms that were likely to undermine the fundamental rights of employees. The Commission also found that the agreement had not been made in good faith and that it did not provide for the genuine resolution of workplace issues. As a result, the Commission refused to approve the agreement.

The Commission's decision highlights the importance of ensuring that enterprise agreements are made in good faith and that they provide for the genuine resolution of workplace issues. Employers and unions must ensure that any agreement they enter into complies with the provisions of the Fair Work Act and that it adequately protects the rights of workers. Failure to do so may result in the agreement being refused approval by the Fair Work Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established