Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 1004

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/681)

FLATLINE CONCRETING PTY LTD and the CFMEU (Victorian Construction and General Division) SubcontractorsConcrete Placement Enterprise Agreement 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 22 MARCH 2022

Application for approval of the FLATLINE CONCRETING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Placement Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the FLATLINE CONCRETING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Placement 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 29 March 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 matter of an application for approval of the Flatline Concreting Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Concrete Placement Enterprise Agreement 2020-2023, the Australian Industrial Relations Commission was tasked with determining whether the agreement met the necessary standards under the Fair Work Act 2009. The application for approval was brought by Flatline Concreting Pty Ltd, and the union involved was the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The primary dispute centred on whether the enterprise agreement complied with the provisions of the Act, particularly in relation to minimum pay rates, entitlements, and procedural fairness in its creation.

The court was required to consider several key legal issues. Firstly, it needed to assess whether the agreement provided for minimum rates of pay and conditions that were no less favourable than the applicable award or safety net award. Secondly, the court had to determine if the agreement met the procedural fairness requirements set out in the Act, which included whether the union had genuinely consulted with its members and if the agreement had been negotiated in good faith. Additionally, the court needed to examine whether the agreement contained appropriate dispute resolution mechanisms and if it adhered to the public interest considerations outlined in the legislation.

In reaching its decision, the Commission examined the evidence provided by both parties and considered the terms of the agreement. The court found that the agreement did provide for minimum rates of pay and conditions that were no less favourable than the applicable award, thus meeting the first criterion. The court also determined that the union had genuinely consulted with its members and that the agreement had been negotiated in good faith, satisfying the procedural fairness requirements. Furthermore, the agreement included appropriate dispute resolution mechanisms, and the Commission was satisfied that it did not undermine the public interest. Based on these findings, the court approved the agreement.

The final orders of the Commission were that the Flatline Concreting Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Concrete Placement Enterprise Agreement 2020-2023 be approved, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission, and it would apply to the employees of Flatline Concreting Pty Ltd covered by 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