Construction, Forestry and Maritime Employees Union

[2024] FWCA 4199

[2024] FWCA 4199

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/4263)

EARTHWORKS DIRECT PTY LTD TRUSTEE FOR MITCHELL TROMP FAMILY TRUST 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, 29 NOVEMBER 2024

Application for approval of the Earthworks Direct Pty Ltd Trustee for Mitchell Tromp Family Trust and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2024 - 2027

1. An application has been made for approval of an enterprise agreement known as the Earthworks Direct Pty Ltd Trustee for Mitchell Tromp Family Trust 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.

1. 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 12 July 2024 and the Agreement was made on 16 October 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

1. 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.

1. 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.

1. Correspondence was sent to the Employer and Construction, Forestry and Maritime Employees Union on 15 November 2024 raising a concern that it appeared the method of vote was ‘via text message’ and accordingly, it was unclear whether this constituted ‘a voting process that ensures the vote of each employee is not disclosed to or ascertainable by the employer’ in accordance with Principle 15a of the Statement of Principles.

1. The Construction, Forestry and Maritime Employees Union provided submissions on 20 November 2024 and conceded that the method of vote was ascertainable by the employer and therefore not consistent with Principle 15a of the Statement of Principles. However, it was submitted that in accordance with the Decision in Thompsons, Kelly & Lewis Pty Ltd t/a Flowserve Pump Division[2024] FWCA 2767 this does not preclude a finding that the Agreement was genuinely agreed. The Construction, Forestry and Maritime Employees Union

further submitted that they were a bargaining representative for a significant proportion of the employees who were eligible to vote on the agreement, support the approval of the Agreement and do not have concerns that the Agreement was not genuinely agreed by employees.

1. Having regard to the CFMEU submissions and the Statement of Principles on Genuine Agreement and in particular Principles 15 and 19, I am satisfied in the circumstances that the Agreement was genuinely agreed.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 December 2024. The nominal expiry date of the Agreement is 2 July 2027.

DEPUTY PRESIDENT

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