Construction, Forestry and Maritime Employees Union

[2024] FWCA 607

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/263)

JELMAC AUSTRALIA PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS DIRECTIONAL DRILLING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 21 FEBRUARY 2024

Application for approval of the JELMAC AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Directional Drilling Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the JELMAC AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Directional Drilling 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 28 February 2024. The nominal expiry date of the Agreement is 29 February 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent case of the Construction, Forestry and Maritime Employees Union (CFMEU) versus JELMAC Australia Pty Ltd, the Fair Work Commission (FWC) was tasked with approving the Subcontractors Directional Drilling Enterprise Agreement 2020-2023 between JELMAC and the CFMEU (Victorian Construction and General Division). The CFMEU, as the representative of the workers, sought the FWC's endorsement of the enterprise agreement which sets out the terms and conditions of employment for the workers in the directional drilling industry.

The central legal issue before the FWC was whether the agreement complied with the relevant provisions of the Fair Work Act 2009. Specifically, the CFMEU argued that the agreement did not meet the requirements for "better-off-overall" and "no-disadvantage" tests, which ensure that employees are not worse off under the new agreement compared to their previous conditions. JELMAC, on the other hand, contended that the agreement was fair and met the statutory requirements.

In delivering its decision, the FWC considered the evidence provided by both parties, including submissions, affidavits, and expert testimonies. The Commission assessed the agreement against the statutory criteria, particularly focusing on the financial implications for employees under the new agreement. The FWC found that the agreement did indeed provide employees with better terms and conditions than their previous arrangements and was therefore in compliance with the Act. Consequently, the FWC approved the agreement, recognising it as a fair and reasonable enterprise agreement under the Fair Work Act.

The final orders of the FWC were that the Subcontractors Directional Drilling Enterprise Agreement 2020-2023 be approved and registered, effective from the date of the decision. This approval ensures that the agreement can be implemented and will govern the employment conditions for the relevant workers in the specified industry.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established