Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 916

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/657)

RG JACKHAMMERING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Demolition Enterprise Agreement 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 21 MARCH 2022

Application for approval of the RG JACKHAMMERING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Demolition Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the RG JACKHAMMERING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Demolition 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.

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 28 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 by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for approval of the RG Jackhammering Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Demolition Enterprise Agreement 2020-2023, the Fair Work Commission (FWC) was tasked with determining whether the agreement should be approved under the Fair Work Act 2009 (Cth). The agreement in question was entered into between RG Jackhammering Pty Ltd and the CFMEU, covering the period from 2020 to 2023, and sought to establish the terms and conditions of employment for subcontractors engaged in demolition work by RG Jackhammering Pty Ltd.

The primary legal issues before the FWC were whether the agreement met the requirements for approval under section 233 of the Fair Work Act, including whether it provided for a better-off-overall test (BOOT), whether it complied with the good faith bargaining requirements, and whether it contained terms that were contrary to public policy or were otherwise unlawful. The FWC also had to consider the potential impact of the agreement on the employees covered by it, particularly in terms of their overall conditions of employment and any potential detriment resulting from the agreement.

After reviewing the evidence and submissions from both parties, the FWC found that the agreement did meet the requirements for approval under the Fair Work Act. The FWC determined that the agreement provided for a BOOT, that the bargaining process was conducted in good faith, and that the terms of the agreement did not contravene any relevant public policy or law. The FWC also noted that the agreement contained provisions that improved the overall conditions of employment for the affected employees, including provisions for minimum rates of pay, penalty rates, and other benefits. As a result, the FWC approved the agreement, and it will now be applicable to the parties and the employees it covers.

The final orders of the FWC were that the RG Jackhammering Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Demolition Enterprise Agreement 2020-2023 be approved under section 233 of the Fair Work Act, effective from the date of the decision. The FWC also directed that the agreement be registered with the Fair Work Commission and that a copy of the approved agreement be provided to both parties and the Fair Work Ombudsman.

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