Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 1467

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/1202)

SILVESTRO CONCRETE PUMPING PTY LTD AS TRUSTEE FOR SILVESTRO CONCRETE PUMPING TRUST AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONCRETE PUMPING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 3 MAY 2022

Application for approval of the SILVESTRO CONCRETE PUMPING PTY LTD AS TRUSTEE FOR SILVESTRO CONCRETE PUMPING TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Pumping Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the SILVESTRO CONCRETE PUMPING PTY LTD AS TRUSTEE FOR SILVESTRO CONCRETE PUMPING TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Pumping 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 10 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

In the matter of an application for approval of the Silvestro Concrete Pumping Pty Ltd as Trustee for the Silvestro Concrete Pumping Trust and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Concrete Pumping Enterprise Agreement 2020-2023, the Australian Federal Court was tasked with assessing the fairness and validity of the proposed enterprise agreement. The applicant, Silvestro Concrete Pumping Pty Ltd, sought approval for the agreement which was negotiated with the CFMEU, aiming to set the terms and conditions of employment for concrete pumping subcontractors.

The court had to determine whether the agreement was a "simplified and modernised" enterprise agreement as defined under section 230 of the Fair Work Act 2009. The primary issues involved whether the agreement had been fairly negotiated and if it met the statutory requirements for approval, including compliance with the Fair Work Act's provisions regarding employee representation, procedural fairness, and the overall fairness of the agreement's terms. The court also examined if the agreement contained mandatory terms and conditions that were compliant with the Act and if it adhered to the criteria set for simplified agreements.

After reviewing the submissions from both parties and the evidence presented, the court found that the proposed agreement was fairly negotiated and met all statutory requirements. The agreement was deemed to be a "simplified and modernised" enterprise agreement as it contained only the essential terms and conditions and adhered to the legislative criteria. The court also determined that the agreement was fair and reasonable, taking into account the interests of the employees and the broader objectives of the Fair Work Act. Consequently, the court approved the enterprise agreement, confirming its compliance with the relevant legal standards and provisions.

The final orders of the court were that the Silvestro Concrete Pumping Pty Ltd as Trustee for the Silvestro Concrete Pumping Trust and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Concrete Pumping Enterprise Agreement 2020-2023 be approved as a "simplified and modernised" enterprise agreement. The court's decision validated the agreement and allowed it to take effect from the specified commencement date, ensuring that the terms and conditions set out in the agreement would govern the employment of concrete pumping subcontractors under the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established