Construction, Forestry and Maritime Employees Union

[2024] FWCA 4170

[2024] FWCA 4170

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/4315)

DOWLING DIRT (AUST.) 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 PLATT	ADELAIDE, 28 NOVEMBER 2024

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

1. The matter was allocated to my Chambers on 12 November 2024.

1. On 13 November 2024, I provided the parties with a table of issues to seek clarification about aspects of the Agreement and invited the Applicant to address these matters.

1. On 25 November 2024, the Applicant provided written submissions, and a Statutory Declaration of Ms Amelia Milner dated 22 November 2024 to resolve the concerns identified. The documents are relevantly summarised below:

·  Method of vote:

The vote was conducted via email/text on 23 October 2024 by the employer (Ms Amelia Milner), who performed duties related to administration and accounts. 5 out of 7 employees covered by the Agreement cast a valid vote. Of the 5 employees, all 5 voted for approval of the Agreement via text message to Ms Milner.

Ordinarily the person conducting the ballot should be entirely independent of the employer. 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. The Applicant conceded that the vote of each employee was disclosed to the employer but submitted that the Commission can nonetheless be satisfied that the Agreement was genuinely agreed. The Applicant cited Shop, Distributive and Allied Employees Association v Allen Family Pty Ltd t/a Subway Clare, Subway Findon, Subway Broken Hill, Subway Kadina, Subway Port Adelaide, Subway Port Pirie[1] and submitted that the Full Bench of the Commission observed that inconsistency with Principle 15 ‘does not preclude a finding that the Agreement was genuinely agreed’ and this is because the Statement of Principles does not ‘operate as a set of mandatory rules’ with which noncompliance will mean that the Commission cannot be satisfied an agreement has been genuinely agreed.[2] The Applicant further submitted that as a bargaining representative for all employees covered by the Agreement, they support the approval of the Agreement and have no concerns that the Agreement was not genuinely agreed.

·  Agreement explanation:

Ms Amelia Milner provided the Agreement, Building and Construction General On-site Award 2020 and explanatory material to all employees covered by the Agreement by hand at a meeting on 12 October 2024. Ms Milner advised employees about the terms of the Agreement including wage increases, allowances, superannuation and the RDO calendar. Employees were invited to ask any questions and advised they could contact the employer or the CMFEU.

1. In respect of notification time, it appears a pre-reform version of the NERR was provided to employees. I am satisfied taking into consideration s.188(5) of the Act, that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly there has been a genuine agreement.

1. There were concerns about omissions from the Delegates Rights Clause contained in the Agreement, however I note that the Agreement is read in conjunction with the Building and Construction General On-site Award 2020 which has the result of remedying any defect.

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) of the Act I note that the Agreement covers this organisation.

1. I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 2 July 2027.

COMMISSIONER

[1] Shop, Distributive and Allied Employees Association v Allen Family Pty Ltd t/a Subway Clare, Subway Findon, Subway Broken Hill, Subway Kadina, Subway Port Adelaide, Subway Port Pirie[2024] FWCFB 48.

[2] Ibid, [76], [102], [103].

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