Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 931

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/680)

GT CONSTRUCTION AUSTRALIA PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS PLASTERING ENTERPRISE AGREEMENT 2020-2023

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

Application for approval of the GT CONSTRUCTION AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Plastering Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the GT CONSTRUCTION AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Plastering 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

The matter before the Fair Work Commission involved an application for approval of the GT Construction Australia Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Plastering Enterprise Agreement 2020-2023. The dispute centred around whether the agreement met the criteria for registration under the Fair Work Act 2009. The application was heard and determined by the Fair Work Commission, a federal statutory tribunal in Australia.

The central legal issue that the Commission needed to resolve was whether the enterprise agreement in question complied with the statutory requirements for approval, including being in the public interest, and ensuring fair and efficient bargaining. This involved examining whether the agreement contained terms that were consistent with the provisions of the Fair Work Act and whether it met the requirements for being registered as a green fields agreement. The Commission also considered if the agreement provided for the proper resolution of workplace issues and did not undermine the collective bargaining system.

In its decision, the Commission found that the enterprise agreement did not meet the criteria for approval. The Commission concluded that the agreement failed to appropriately balance the interests of the employees and employers, particularly in terms of wage progression and penalty rates, which were deemed insufficient to ensure a fair and reasonable outcome for the employees. The Commission also found that the agreement did not sufficiently promote efficient bargaining practices or serve the public interest, as it did not address key workplace issues in a manner that was fair and efficient. As a result, the Commission did not grant approval for the enterprise agreement.

Consequently, the Fair Work Commission dismissed the application for approval of the GT Construction Australia Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Plastering Enterprise Agreement 2020-2023. The decision highlights the importance of ensuring that enterprise agreements are fair, balanced, and promote efficient and effective workplace relations.

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