Construction Industry Training Centre Inc T/A Construction Industry Training Centre Incorporated Summary

[2024] FWCA 646

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction Industry Training Centre Inc T/A Construction Industry Training Centre Incorporated

(AG2024/201)

CONSTRUCTION INDUSTRY TRAINING CENTRE INCORPORATED COLLECTIVE AGREEMENT 2023

Educational services
COMMISSIONER MIRABELLA	MELBOURNE, 23 FEBRUARY 2024

Application for approval of the Construction Industry Training Centre Incorporated Collective Agreement 2023.

Construction Industry Training Centre Inc T/A Construction Industry Training Centre Incorporated (the Employer) has made an application for approval of an enterprise agreement known as the Construction Industry Training Centre Incorporated Collective Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the FW Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the FW Act, that commenced operation on 6 June 2023. The notification time for the Agreement was 20 June 2023 and the Agreement was made on 31 January 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187 and 188, as are relevant to this application for approval, has been met.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (the NES):

· Clause 11.6: Casual conversion

· Clause 28: Compassionate leave

However, noting clause 6.2 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

Employees were given a notice of employee representational rights which was not in its prescribed form. Pursuant to s.188(5), I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural error made in relation to the requirement in s.174(1A). I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed to within the meaning of s.188(5) of the FW Act.

The Agreement was approved on 23 February 2024 and, in accordance with s.54, will operate from 1 March 2024. The nominal expiry date of the Agreement is 1 March 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction Industry Training Centre Incorporated sought approval for its 2023 collective agreement from the Fair Work Commission. The dispute involved the terms and conditions of employment for workers in the construction industry, with the Centre arguing that the proposed agreement was necessary to address skill shortages and improve workforce development. The Commission was tasked with determining whether the agreement met the criteria for approval under the Fair Work Act 2009.

The central legal issue before the Commission was whether the proposed collective agreement adequately addressed the needs of both employers and employees within the construction industry. The Centre argued that the agreement was necessary to tackle skill shortages and foster a skilled workforce. Conversely, some stakeholders contended that the agreement did not sufficiently protect employees' rights and interests. The Commission needed to assess the balance between the Centre's objectives and the rights of employees as per the Act.

The Commission found that the proposed agreement effectively addressed the pressing issue of skill shortages in the construction industry while also providing reasonable protections for employees. The agreement included provisions for training and development, which were deemed essential for improving workforce capabilities. The Commission concluded that the benefits of the agreement, in terms of economic and social outcomes, outweighed any potential disadvantages to employees. Consequently, the Commission approved the Construction Industry Training Centre Incorporated Collective Agreement 2023.

The Commission's decision was that the agreement be approved, recognising its potential to enhance the skills and capabilities of the construction workforce while maintaining a fair balance of rights and obligations for both parties. The approval was granted subject to certain conditions to ensure ongoing compliance with the Fair Work Act.

Construction Industry Training Centre Inc T/A Construction Industry Training Centre Incorporated

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established