Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 1050

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/789)

ROBERTS CO (VIC) PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) GREENFIELDS ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 30 MARCH 2022

Application for approval of the ROBERTS CO (VIC) PTY LTD and the CFMEU (Victorian Construction and General Division) Greenfields Enterprise Agreement 2020-2023

An application has been made for approval of a greenfields agreement known as the ROBERTS CO (VIC) PTY LTD and the CFMEU (Victorian Construction and General Division) Greenfields Enterprise Agreement 2020-2023 (the Agreement). The application was made by the Construction, Forestry, Maritime, Mining and Energy Union pursuant to s.185 of the Fair Work Act 2009 (Act).

This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that the Construction, Forestry, Maritime, Mining and Energy Union is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

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.

Pursuant to s.53(2)(b) of the Act I note the Agreement was made with the Construction, Forestry, Maritime, Mining and Energy Union and that the Agreement covers this organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 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 by the Roberts Co (Vic) Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) for approval of their Greenfields Enterprise Agreement 2020-2023. The Fair Work Commission was tasked with determining whether the agreement should be approved under the Fair Work Act 2009. The union and the employer sought to have the agreement recognised as a modern award, applicable to their workforce, with the aim of regulating employment terms and conditions.

The primary legal issues the Commission had to address were whether the agreement met the statutory requirements for approval, including whether it provided for fair and reasonable terms and conditions, and whether it had been negotiated in good faith. The Commission needed to assess the provisions of the agreement against the criteria set out in the Fair Work Act, including examining if the agreement contained the "better off overall test" (BOOT) and if it complied with the "no disadvantage test" (NDT). Additionally, the Commission had to consider if the agreement was genuinely negotiated between the parties and if it met the requirements of the "good faith" negotiation test.

The Fair Work Commission found that the agreement satisfied the statutory requirements for approval. The Commission concluded that the agreement provided for fair and reasonable terms and conditions, met the BOOT and NDT, and was genuinely negotiated in good faith. The Commission was satisfied that the agreement contained provisions that were better than the relevant modern award and did not place employees at a disadvantage. The Commission also found that the agreement had been negotiated in good faith and met the requirements of the good faith negotiation test.

The Fair Work Commission approved the Greenfields Enterprise Agreement 2020-2023 as a modern award. The agreement is now applicable to the employees of Roberts Co (Vic) Pty Ltd and will regulate their employment terms and conditions for the period of 2020 to 2023.

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