Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 1764

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/1524)

ASI JD MACDONALD PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023

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

Application for approval of the ASI JD MACDONALD PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the ASI JD MACDONALD PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings 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

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union, on behalf of the employees, applied for approval of the ASI JD MacDonald Pty. Ltd. and the CFMEU (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023. The dispute centred on whether the agreement met the statutory requirements for approval under the Fair Work Act 2009. The legal issues before the Commission involved assessing whether the agreement contained mandatory terms, whether it was made in good faith, and if it provided for the proper operation of the enterprise.

The Commission considered the terms of the agreement, the process by which it was negotiated, and the parties' conduct during the negotiation. It found that the agreement included mandatory terms that were within the scope of the Fair Work Act and that it had been made in good faith. The Commission also concluded that the agreement provided for the proper operation of the enterprise by addressing key aspects of employment conditions, including wages, hours of work, and dispute resolution mechanisms. Based on these findings, the Commission approved the agreement, finding that it met the statutory requirements for approval.

Accordingly, the Fair Work Commission approved the ASI JD MacDonald Pty. Ltd. and the CFMEU (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023. The decision underscores the importance of ensuring that enterprise agreements comply with the statutory requirements set out in the Fair Work Act and that they are made in good faith and provide for the proper operation of the enterprise.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established