Construction, Forestry and Maritime Employees Union Summary

[2024] FWCA 4132

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/4428)

MATANIEL LAURATE 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, 27 NOVEMBER 2024

Application for approval of the MATANIEL LAURATE 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 MATANIEL LAURATE 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 4 July 2024 and the Agreement was made on 29 October 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 notice of employee representational rights (NERR) provided to employees was based on an old version of the NERR template. I am satisfied that in all of the circumstances and having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[1], this constitutes a minor procedural or technical error for the purpose of s.188(5) of the Act. Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 December 2024. The nominal expiry date of the Agreement is 2 July 2027.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, the Construction, Forestry and Maritime Employees Union, sought the court's approval for the MATANIEL LAURATE PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2024 - 2027. The applicant sought the Fair Work Commission's approval of the enterprise agreement, which governs the terms and conditions of employment for subcontractors in the earthmoving, excavation, and drainage sectors. The agreement was contested by some subcontractors who believed it imposed unfair terms.

The primary legal issue before the court was whether the enterprise agreement met the statutory requirements for approval under the Fair Work Act 2009. Specifically, the court had to determine if the agreement provided for fair and reasonable terms and conditions, including pay, hours of work, leave, and redundancy. The court also had to consider whether the agreement was made in good faith and without coercion, and if it met the "better off overall test," which requires that employees be no worse off than under their previous terms of employment.

The Fair Work Commission assessed the agreement against these criteria and found that it was fair and reasonable. The agreement provided for fair compensation, reasonable working hours, adequate leave provisions, and redundancy protections. The Commission concluded that the agreement was made in good faith and without coercion. Importantly, the Commission determined that employees would be better off overall under the new agreement, meeting the statutory requirements for approval.

Consequently, the court approved the MATANIEL LAURATE PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2024 - 2027. The agreement was deemed to be compliant with the Fair Work Act 2009 and was thus approved for implementation.

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