Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 1351

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/1081)

WESTGATE FORMWORK PTY. LTD. AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS FORMWORK ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 21 APRIL 2022

Application for approval of the WESTGATE FORMWORK PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the WESTGATE FORMWORK PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork 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 28 April 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 the Westgate Formwork Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023. The matter was heard in the Fair Work Commission, which is responsible for overseeing and approving enterprise agreements under the Fair Work Act 2009.

The primary legal issue before the court was whether the proposed enterprise agreement met the criteria for approval under section 231 of the Fair Work Act. This required the court to consider several factors, including whether the agreement was in writing, whether it covered employees of a particular employer or group of employers, whether it had been fairly negotiated, and whether it contained all the required terms and conditions of employment. The court was also required to determine whether the agreement complied with the "better off overall test," which requires that employees be no worse off financially under the agreement than they would be under the applicable award or agreement.

The court found that the agreement met all the necessary criteria for approval. It was in writing, covered employees of Westgate Formwork Pty Ltd, and had been fairly negotiated between the parties. The court also determined that the agreement contained all the required terms and conditions of employment, and that it complied with the "better off overall test." The court noted that the agreement provided for a range of benefits for employees, including increased wages and improved working conditions. The court concluded that the agreement was in the best interests of the employees and approved it under section 175 of the Fair Work Act.

The court ordered that the Westgate Formwork Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023 be approved and registered with the Fair Work Commission. The agreement will now be in effect for the period from 1 July 2020 to 30 June 2023, subject to any modifications that may be made by the parties during that time. The decision provides clarity for the parties and ensures that the employees of Westgate Formwork Pty Ltd will benefit from the improved terms and conditions set out 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