Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 1201

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/913)

QA CONSTRUCTION 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, 7 APRIL 2022

Application for approval of the QA CONSTRUCTION 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 QA CONSTRUCTION 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 14 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 matter before the Fair Work Commission involved an application for the approval of a proposed enterprise agreement between QA Construction Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The proposed agreement was the QA Construction Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023. The union sought the Commission's approval under section 234 of the Fair Work Act 2009. The primary concern was whether the proposed agreement met the requirements of the Act, particularly regarding the treatment of employees and the fairness of its terms.

The key legal issues that the Commission had to address included whether the agreement provided for the pay and conditions of employees fairly and reasonably, whether it complied with the provisions of the Fair Work Act, and if it included any terms that were contrary to the Act or that would unfairly disadvantage employees. Additionally, the Commission needed to determine if the agreement was made in good faith and whether it contained any terms that might undermine the operation of the national system of industrial relations.

In its decision, the Commission examined the proposed agreement clause by clause, assessing its provisions against the relevant legislative criteria. The Commission found that the agreement, while largely compliant, contained certain terms that did not meet the standards set out in the Fair Work Act. Specifically, the Commission identified issues related to the classification of employees and the rates of pay that were proposed. After considering submissions from both parties, the Commission made several modifications to the agreement to ensure compliance with the Act. The amended agreement was found to appropriately balance the interests of both employers and employees, and it was approved as meeting the necessary requirements.

The final orders of the Commission included the approval of the amended QA Construction Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023, subject to the modifications made by the Commission. These modifications ensured that the agreement adhered to the principles of fairness and good faith, and provided for the pay and conditions of employees in a manner that was consistent with the provisions of the Fair Work Act.

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