Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 1048

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/752)

REMEDIAL CONTRACTORS AUSTRALIA PTY. LTD. T/AS REMCON CONSTRUCTIONS GROUP AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS FORMWORK ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 28 MARCH 2022

Application for approval of the REMEDIAL CONTRACTORS AUSTRALIA PTY. LTD. T/As REMCON CONSTRUCTIONS GROUP 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 REMEDIAL CONTRACTORS AUSTRALIA PTY. LTD. T/As REMCON CONSTRUCTIONS GROUP 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 4 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

In the recent decision of Construction, Forestry, Maritime, Mining and Energy Union, the Fair Work Commission (FWC) was tasked with approving an enterprise agreement between Remedial Contractors Australia Pty Ltd t/as Remcon Constructions Group and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023. The union sought approval of the agreement under the Fair Work Act 2009, asserting that it met the requirements for a modern award and provided appropriate terms and conditions for the employees involved.

The primary legal issues before the FWC centred on whether the agreement satisfied the statutory criteria for approval, including whether it was free from any contraventions of the Fair Work Act, provided for proper minimum terms, and contained appropriate mechanisms for dispute resolution. Additionally, the FWC had to consider the agreement's compliance with the Better Off Overall Test (BOOT) to ensure that employees would not be worse off financially if the agreement replaced their existing awards.

In reaching its decision, the FWC examined the terms and conditions of the agreement in detail, finding that it did not contravene any provisions of the Fair Work Act. The FWC also determined that the agreement provided for proper minimum terms and included appropriate dispute resolution mechanisms. Furthermore, the FWC concluded that the agreement passed the BOOT by ensuring that employees would not be worse off overall compared to their existing award terms. Consequently, the FWC approved the enterprise agreement, finding it to be fair and reasonable.

The FWC's approval of the enterprise agreement marks an important step in the ongoing efforts to establish fair and equitable terms for employees within the construction industry. By ensuring that the agreement met the statutory criteria for approval, the FWC has provided certainty to both employers and employees regarding the terms and conditions of their employment. This decision reinforces the importance of enterprise agreements as a means of achieving better outcomes for workers while maintaining a balanced approach between the interests of employers and employees.

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