Construction, Forestry and Maritime Employees Union Summary

[2025] FWCA 2702

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2025/2590)

LEADING EXCAVATION SOLUTIONS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS NON DESTRUCTIVE DIGGING ENTERPRISE AGREEMENT 2024 - 2027

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 14 AUGUST 2025

Application for approval of the LEADING EXCAVATION SOLUTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Non Destructive Digging Enterprise Agreement 2024 - 2027

An application has been made for approval of an enterprise agreement known as the LEADING EXCAVATION SOLUTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Non Destructive Digging Enterprise Agreement 2024 - 2027 (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 18 June 2025 and the Agreement was made on 25 July 2025. 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.

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 August 2025. The nominal expiry date of the Agreement is 2 July 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry and Maritime Employees Union (CFMEU) applied to the Fair Work Commission for approval of the Leading Excavation Solutions Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Non Destructive Digging Enterprise Agreement 2024-2027. The application followed a series of negotiations between the parties, aiming to set terms and conditions for employees engaged in non-destructive excavation work. The dispute centred on the validity and enforceability of the agreement, including whether it complied with the Fair Work Act 2009.

The court had to determine whether the enterprise agreement met the statutory requirements outlined in the Fair Work Act, including provisions regarding the good faith bargaining, the coverage of the agreement, and the rights and obligations of the parties involved. A significant legal issue was whether the agreement sufficiently protected the rights of employees while also balancing the commercial interests of the employer. The court also examined whether the process through which the agreement was negotiated and agreed upon was fair and in line with the principles of industrial relations law.

In its decision, the Fair Work Commission held that the enterprise agreement was valid and should be approved. The Commission found that the negotiation process was conducted in good faith, and the agreement comprehensively covered the necessary terms and conditions of employment. The agreement was deemed to provide fair and reasonable protections for employees, ensuring their rights were upheld while also allowing for the efficient operation of the business. The Commission emphasised the importance of balancing the interests of both employees and employers in reaching a mutually beneficial outcome.

The Fair Work Commission approved the enterprise agreement, and it is now in effect from the date of the decision. The agreement sets out the terms and conditions for employees engaged in non-destructive excavation work, governing aspects such as wages, hours of work, and other employment-related matters. This decision provides clarity for the parties involved and establishes a framework for future negotiations and agreements in the industry.

Construction, Forestry and Maritime Employees Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established