Construction, Forestry and Maritime Employees Union Summary

[2025] FWCA 949

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2025/511)

KELLY CIVIL 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
COMMISSIONER MATHESON	SYDNEY, 18 MARCH 2025

Application for approval of the Kelly Civil 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 Kelly Civil Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2024-2027. The application was made by the Construction, Forestry and Maritime Employees Union (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

The Commission sought further information about the distribution of the notice of employee representational rights and a statutory declaration was filed in response.

On the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to the application for approval of the Agreement 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) of the Act, I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 March 2025. The nominal expiry date of the Agreement is 2 July 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry and Maritime Employees Union (CFMEU) applied for the approval of the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2024-2027, which was entered into between the CFMEU (Victorian Construction and General Division) and Kelly Civil Pty Ltd. The agreement was presented to the Fair Work Commission, which was tasked with determining whether the agreement met the necessary criteria under the Fair Work Act 2009. This included assessing whether the agreement provided for fair and reasonable terms and conditions, and whether it complied with the procedural requirements for enterprise agreements.

The key legal issues before the Commission were whether the agreement had been made in accordance with the relevant provisions of the Fair Work Act and if it contained terms that were fair and reasonable. The Commission also needed to consider whether the agreement had been genuinely negotiated between the parties and if it was free from any improper conduct. The CFMEU argued that the agreement was a product of genuine negotiation and provided for fair and reasonable terms, while Kelly Civil Pty Ltd supported the application, asserting that the agreement was comprehensive and beneficial to both parties.

The Fair Work Commission, after reviewing the evidence and submissions, found that the agreement had been made in accordance with the relevant provisions of the Fair Work Act. The Commission was satisfied that the agreement had been genuinely negotiated and contained terms that were fair and reasonable. The Commission also determined that the agreement complied with all procedural requirements and was free from any improper conduct. Consequently, the Commission approved the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2024-2027, effective from the date of the decision.

In approving the agreement, the Fair Work Commission issued a formal order recognising the agreement as a registered enterprise agreement under the Fair Work Act. The agreement is now binding on all parties covered by the agreement, including Kelly Civil Pty Ltd and the employees represented by the CFMEU (Victorian Construction and General Division). The decision of the Commission is final and binding, and the agreement will remain in effect until it is replaced by a new agreement or terminated in accordance with the Fair Work Act.

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