Construction, Forestry and Maritime Employees Union

[2024] FWCA 1367

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/1149)

BSECC PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS EARTHMOVING, EXCAVATION AND DRAINAGE ENTERPRISE AGREEMENT 2020-2023

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

Application for approval of the BSECC PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the BSECC PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors 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 matter between the Construction, Forestry and Maritime Employees Union and BSECC PTY LTD involved an application for the approval of an enterprise agreement. The dispute was heard in the Fair Work Commission. The Union sought approval for the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The legal issues the court had to determine were whether the agreement met the requirements under the Fair Work Act 2009 and if it was made in good faith and without coercion.

The court considered various aspects of the agreement, including its compliance with the Fair Work Act, the process by which it was made, and whether it provided for the appropriate minimum entitlements. The Union argued that the agreement was fairly and genuinely negotiated and included provisions that were necessary for the industry. The company, BSECC PTY LTD, did not contest the agreement but submitted that certain sections required clarification to ensure they did not contravene minimum standards. The court found that the agreement was made in good faith and without coercion, and it complied with the minimum entitlements as stipulated in the Act. The court approved the agreement with minor modifications to ensure clarity and adherence to statutory standards.

The court's decision was based on the evidence provided by both parties and the requirements under the Fair Work Act. The Union's negotiation process was deemed appropriate, and the agreement was found to be in the best interests of the employees. The court emphasised the importance of ensuring that agreements provide for fair and reasonable terms and conditions of employment. The final orders included the approval of the enterprise agreement with the specified modifications to ensure compliance and clarity.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established