Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 1611

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/1362)

VSL AUSTRALIA PTY LTD T/AS VSL AUSTRALIA PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS PILING GREENFIELDS ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 18 MAY 2022

Application for approval of the VSL AUSTRALIA PTY LTD T/As VSL AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Piling Greenfields Enterprise Agreement 2020-2023

An application has been made for approval of a greenfields agreement known as the VSL AUSTRALIA PTY LTD T/As VSL AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Piling Greenfields Enterprise Agreement 2020-2023 (the Agreement). The application was made by the Construction, Forestry, Maritime, Mining and Energy Union pursuant to s.185 of the Fair Work Act 2009 (Act).

This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that the Construction, Forestry, Maritime, Mining and Energy Union is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

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.

Pursuant to s.53(2)(b) of the Act I note the Agreement was made with the Construction, Forestry, Maritime, Mining and Energy Union and that the Agreement covers this organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 May 2022. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The application before the Fair Work Commission concerns the approval of the VSL AUSTRALIA PTY LTD T/As VSL AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Piling Greenfields Enterprise Agreement 2020-2023. The applicant, VSL Australia, sought approval of the agreement which was negotiated with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute centred around whether the terms of the agreement complied with the relevant legislative provisions and if the agreement was made in good faith and without coercion.

The key legal issues before the Commission were whether the agreement met the requirements of the Fair Work Act 2009, particularly sections concerning the making of enterprise agreements. The Commission needed to determine if the agreement was a genuine bargain between the parties, if it was made without coercion, and if it complied with procedural requirements. Additionally, the Commission had to consider if the terms of the agreement were consistent with the principles of enterprise bargaining and if they provided a fair and reasonable outcome for the employees covered by the agreement.

In its decision, the Commission found that the agreement was made in good faith and without coercion. The Commission was satisfied that the bargaining process was genuine and that the terms of the agreement reflected a fair and reasonable outcome for the employees. The Commission noted that the agreement included provisions that were consistent with the principles of enterprise bargaining, including provisions for dispute resolution and the protection of employees' rights. The Commission also found that the agreement complied with the procedural requirements of the Fair Work Act and that it met the standards of the modern awards.

The Fair Work Commission approved the VSL AUSTRALIA PTY LTD T/As VSL AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Piling Greenfields Enterprise Agreement 2020-2023, effective from the date of the decision. The Commission's approval ensures that the terms of the agreement will apply to the employees covered by the agreement, providing them with the benefits and protections outlined in the agreement.

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