Construction, Forestry and Maritime Employees Union

[2025] FWCA 1682

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2025/1437)

TSA CIVIL GROUP PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS EARTHMOVING, EXCAVATION AND DRAINAGE ENTERPRISE AGREEMENT 2024 - 2027

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 20 MAY 2025

Application for approval of the TSA CIVIL GROUP PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2024 - 2027

An application has been made for approval of an enterprise agreement known as the TSA CIVIL GROUP PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage 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 9 April 2025 and the Agreement was made on 2 May 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 27 May 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 matter before the court involved the Construction, Forestry and Maritime Employees Union (CFMEU) and TSA Civil Group Pty Ltd. The applicants sought approval for the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2024-2027, which governs the terms and conditions of employment for subcontractors in the earthmoving, excavation, and drainage sectors within Victoria. The agreement was proposed to replace the existing enterprise agreement and establish new terms for the specified period. The court's role was to determine whether the agreement met the statutory requirements for approval under the Fair Work Act 2009.

The primary legal issue before the court was whether the proposed agreement complied with the provisions of the Fair Work Act. Specifically, the court had to consider whether the agreement satisfied the mandatory criteria for approval, including whether it provided for a genuine enterprise agreement, whether it was free from any prohibited content, and whether it had been appropriately bargained. The court also needed to ensure that the agreement was in the best interests of the employees it covered and did not unfairly disadvantage any party. Additionally, the court examined whether the process leading to the agreement's negotiation and finalisation was fair and appropriate.

The court reviewed the evidence presented by both parties, including the negotiation records, the terms of the agreement, and the process that led to its formation. It found that the agreement was genuinely negotiated between the parties and that it contained terms that were fair and reasonable. The court determined that the agreement met all the statutory requirements for approval under the Fair Work Act. It was satisfied that the agreement provided for the employees' interests, did not include any prohibited content, and had been fairly negotiated. Based on these findings, the court approved the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2024-2027, confirming its compliance with the necessary legal standards.

In conclusion, the court granted the application for approval of the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2024-2027. The agreement was deemed to meet all the statutory requirements under the Fair Work Act and was found to be in the best interests of the employees it covered. The court's decision provided certainty and legitimacy to the new terms of employment, ensuring that they would be legally binding and enforceable for the specified period.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established