Construction, Forestry and Maritime Employees Union

[2025] FWCA 8

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/5167)

TRINITY DRAINAGE 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, 2 JANUARY 2025

Application for approval of the TRINITY DRAINAGE 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 TRINITY DRAINAGE 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 10 October 2024 and the Agreement was made on 7 December 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.

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 9 January 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

In the Fair Work Commission, the Construction, Forestry and Maritime Employees Union applied for approval of the TRINITY DRAINAGE PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2024-2027. The Union argued that the agreement met the requirements of the Fair Work Act 2009 for a modern award, including meeting the ‘better off overall test’. The company opposed the application, asserting that the agreement did not meet the necessary standards for approval.

The legal issues before the Commission involved whether the proposed agreement satisfied the statutory criteria for a modern award. Specifically, the Commission needed to determine if the agreement was a ‘single, clear and accessible’ document that met the ‘better off overall test’ and did not contain provisions that were unfair or unreasonable. The Union argued that the agreement was comprehensive and fair, while the company contended that certain clauses were unduly restrictive and did not meet the required standards.

The Commission carefully examined the agreement and concluded that it was a clear and accessible document that met the statutory requirements of a modern award. The Commission found that the agreement satisfied the ‘better off overall test’ as it provided employees with benefits that were at least equivalent to those under the relevant modern award. The Commission also determined that the agreement did not contain any unfair or unreasonable provisions, and thus approved the agreement as a modern award.

The Commission approved the agreement, setting out the terms and conditions of employment for employees covered by the agreement. The approval was subject to the agreement being registered by the Registrar of the Fair Work Commission. The decision is a significant outcome for both parties, as it provides certainty and stability in the employment relationship for the duration of the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established