Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 1605

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/1350)

ELEPHANTS FOOT WASTE COMPACTORS PTY. LTD. T/AS ELEPHANTS FOOT CHUTE SOLUTIONS AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS ARCHITECTURAL FEATURES AND FITTINGS ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 17 MAY 2022

Application for approval of the ELEPHANTS FOOT WASTE COMPACTORS PTY. LTD. T/As ELEPHANTS FOOT CHUTE SOLUTIONS 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 ELEPHANTS FOOT WASTE COMPACTORS PTY. LTD. T/As ELEPHANTS FOOT CHUTE SOLUTIONS 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 24 May 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 case involved an application for the approval of a specific enterprise agreement between Elephants Foot Waste Compactors Pty Ltd, trading as Elephants Foot Chute Solutions, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) (Victorian Construction and General Division). The dispute centred on the proposed Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023, which was subject to review by the Fair Work Commission (FWC). The FWC was tasked with determining whether the agreement complied with the requirements of the Fair Work Act 2009 and if it was in the best interests of the employees covered by the agreement.

The key legal issues before the FWC were whether the proposed agreement met the statutory criteria for approval, including provisions for minimum wages and conditions, and whether it adhered to the principles of good faith bargaining. Additionally, the court had to assess if the agreement appropriately balanced the interests of both the employer and the employees, and whether it contained provisions that were fair and reasonable in all the circumstances.

In its decision, the FWC found that the proposed agreement met the statutory criteria for approval. The FWC emphasised that the agreement provided for fair and reasonable terms and conditions, including minimum wages that were in line with the applicable awards and safety nets. The court also highlighted that the agreement had been negotiated in good faith and contained provisions that were fair and reasonable for both parties. The FWC concluded that the agreement was in the best interests of the employees and approved it accordingly.

The final orders of the FWC were to approve the Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023, effective from the date of the decision. The agreement was to be registered with the Fair Work Ombudsman, and the parties were directed to comply with the terms of the approved agreement. This decision provided clarity and certainty for both the employer and the employees regarding the terms of their employment under the new enterprise 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