Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 1071

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/824)

SEALWELL (VIC) PTY LTD and the CFMEU (Victorian Construction and General Division) Specialised Rope Access Subcontractors Enterprise Agreement 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 1 aPRIL 2022

Application for approval of the SEALWELL (VIC) PTY LTD and the CFMEU (Victorian Construction and General Division) Specialised Rope Access Subcontractors Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the SEALWELL (VIC) PTY LTD and the CFMEU (Victorian Construction and General Division) Specialised Rope Access Subcontractors 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 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 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 8 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 involves an application for the approval of a special enterprise agreement between SEALWELL (VIC) PTY LTD and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The application was heard and determined by the Fair Work Commission (FWC). The dispute centres around the terms of the proposed agreement, which covers specialised rope access subcontractors in Victoria. The CFMEU sought to have the agreement approved under the Fair Work Act 2009, arguing that it met the criteria for approval by the FWC.

The central legal issues before the FWC were whether the agreement was a genuine enterprise agreement, whether it contained the necessary safety net provisions, and whether it was appropriate to approve the agreement given the specific nature of the workforce it covers. The FWC examined the agreement to determine if it contained the minimum terms and conditions as required by the Fair Work Act, including the safety net provisions, and whether it was made without undue influence or coercion.

In delivering its decision, the FWC found that the agreement met all the statutory requirements for approval. The Commission determined that the agreement contained the necessary safety net provisions and did not result in a deterioration of the terms and conditions for the employees covered by it. The FWC also concluded that the agreement was genuinely made without any undue influence or coercion and was appropriate for approval given the specific nature of the work involved. The Commission emphasised the importance of tailored agreements that reflect the unique characteristics of the industry and the workforce.

The Fair Work Commission approved the SEALWELL (VIC) PTY LTD and the CFMEU (Victorian Construction and General Division) Specialised Rope Access Subcontractors Enterprise Agreement 2020-2023. This decision ensures that the terms and conditions of employment for specialised rope access subcontractors in Victoria are governed by an agreement that meets all legal requirements and appropriately reflects the nature of their work.

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