Construction, Forestry and Maritime Employees Union

[2024] FWCA 1384

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/1153)

QEST INFRASTRUCTURE GROUP PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) NON-DESTRUCTIVE DIGGER EARTHMOVING, EXCAVATION AND DRAINAGE ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	MELBOURNE, 19 APRIL 2024

Application for approval of the QEST INFRASTRUCTURE GROUP PTY LTD and the CFMEU (Victorian Construction and General Division) Non-Destructive Digger Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the QEST INFRASTRUCTURE GROUP PTY LTD and the CFMEU (Victorian Construction and General Division) Non-Destructive Digger Earthmoving, Excavation and Drainage 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 and Maritime Employees 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 and Maritime Employees 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 26 April 2024. The nominal expiry date of the Agreement is 30 April 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves the Construction, Forestry and Maritime Employees Union (CFMEU) and QEST Infrastructure Group Pty Ltd, with a dispute regarding the approval of a specific enterprise agreement. The application was brought before the Fair Work Commission, which has jurisdiction over employment matters in Australia. The CFMEU sought approval for the Non-Destructive Digger Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023, which was to govern the employment terms of certain workers in the earthmoving, excavation, and drainage sectors employed by QEST.

The central legal issues before the Commission were whether the agreement complied with the Fair Work Act 2009 and whether it met the criteria for being a "better off overall test" (BOOT) agreement. The Commission needed to determine if the proposed agreement provided a fair and better outcome for the employees than the applicable awards or existing agreements. Additionally, the Commission examined whether the agreement was made in good faith and whether the union had adequately represented its members in the negotiations.

In delivering the decision, the Commission considered the evidence presented by both parties, including submissions on the BOOT test and the procedural fairness of the agreement-making process. The Commission noted that the agreement contained provisions that were beneficial to the employees, including wage increases and improved conditions. The Commission was satisfied that the union had adequately represented its members and that the agreement was made in good faith. The Commission found that the agreement provided a fair and better outcome for the employees, meeting the BOOT criteria. Therefore, the Commission approved the agreement.

The Fair Work Commission approved the Non-Destructive Digger Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023, effective from the date of the decision. The approval ensures that the terms and conditions of employment for the affected workers are governed by the agreement, providing them with the benefits outlined in the approved document.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established