Construction, Forestry and Maritime Employees Union

[2024] FWCA 901

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/552)

DALY'S CONSTRUCTIONS (AUST) 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
DEPUTY PRESIDENT MASSON	MELBOURNE, 14 MARCH 2024

Application for approval of the DALY'S CONSTRUCTIONS (AUST) 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 DALY’S CONSTRUCTIONS (AUST) 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.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 21 February 2024 and the Agreement was made on 29 February 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

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 21 March 2024. The nominal expiry date of the Agreement is 31 March 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application for the approval of a new enterprise agreement between Daly's Constructions (Aust) Pty Ltd and the Construction, Forestry and Maritime Employees Union (Victorian Construction and General Division). The agreement was for subcontractors in earthmoving, excavation, and drainage and covered the period from 2020 to 2023. The application was heard in the Fair Work Commission.

The primary legal issue before the court was whether the agreement met the necessary criteria for approval under the Fair Work Act. This included assessing if the agreement provided for fair and reasonable terms and conditions of employment, and if it was made in good faith and without the coercion or undue influence of either party.

The Fair Work Commission carefully examined the details of the agreement, considering the evidence and submissions from both parties. The Commission found that the agreement was fair and reasonable and had been made in good faith. The Commission was satisfied that all necessary consultation had occurred, and there was no evidence of undue influence or coercion. The application was approved, and the agreement was duly endorsed.

The final orders of the Commission were that the agreement, titled the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023, was approved and registered under the Fair Work Act. The agreement was to take effect from the date of the Commission's decision and would remain in force until the specified end date or until replaced by another approved agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established