Construction, Forestry and Maritime Employees Union

[2024] FWCA 1026

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/699)

JGR DRAINAGE AND EXCAVATION 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, 25 MARCH 2024

Application for approval of the JGR DRAINAGE AND EXCAVATION 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 JGR DRAINAGE AND EXCAVATION 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 1 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 Construction, Forestry and Maritime Employees Union (CFMEU) sought approval for a new enterprise agreement with JGR Drainage and Excavation Pty Ltd. The agreement, known as the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023, was to govern the terms and conditions of employment for subcontractors in the earthmoving, excavation, and drainage sectors. The application was heard by the Fair Work Commission (FWC), which had to determine whether the agreement met the requirements of the Fair Work Act 2009.

The primary legal issue before the Commission was whether the agreement was a "better off overall test" (BOOT) compliant enterprise agreement, meaning that it provided employees with at least the same terms and conditions as those provided by the relevant modern award. The Commission also had to consider whether the agreement was made in good faith and whether it was free from any invalid provisions.

The Fair Work Commission found that the agreement met the BOOT requirements and was compliant with the Fair Work Act. The Commission noted that the agreement provided for a pay increase above the minimum award rates and included provisions that were beneficial to employees, such as provisions for leave and termination of employment. The Commission was also satisfied that the agreement was made in good faith and was free from any invalid provisions. As a result, the Commission approved the agreement, which will now govern the terms and conditions of employment for subcontractors in the earthmoving, excavation, and drainage sectors for the next three years.

The Fair Work Commission approved the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023, which will now govern the terms and conditions of employment for subcontractors in the earthmoving, excavation, and drainage sectors. The Commission's decision confirms the importance of enterprise agreements in providing employees with better terms and conditions than those provided by the relevant modern award.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established