Construction, Forestry and Maritime Employees Union

[2024] FWCA 4124

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/4119)

ADAMSON EARTHMOVERS SERVICES PTY. LTD. AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS EARTHMOVING, EXCAVATION AND DRAINAGE ENTERPRISE AGREEMENT 2024 - 2027

Water, sewerage and drainage services
COMMISSIONER MATHESON	SYDNEY, 26 NOVEMBER 2024

Application for approval of the Adamson Earthmovers Services 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 Adamson Earthmovers Services Pty. Ltd. and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2024 – 2027 (Agreement). 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 notice of employee representational rights that was provided to employees was not in the correct form. I consider this to be a minor procedural or technical error of the nature contemplated by s.188(5) and am satisfied that the employees are not likely to have been disadvantaged by the error.

On the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 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 3 December 2024. 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 matter before the court involved an application for the approval of an enterprise agreement between Adamson Earthmovers Services Pty. Ltd. and the Construction, Forestry and Maritime Employees Union (Victorian Construction and General Division). The dispute centred on the terms of the proposed Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2024-2027, and whether they complied with the relevant industrial laws. The case was heard in the Fair Work Commission.

The primary legal issue for the court was to determine whether the proposed agreement met the requirements under the Fair Work Act 2009, specifically whether it was a "better off overall test" (BOOT) agreement. This required the court to assess if the proposed terms were better for the employees than the applicable award or existing enterprise agreement. Additionally, the court needed to ensure that the agreement complied with the procedural fairness requirements and was made without any coercion, duress, or unfair labour practices.

The court examined the terms of the agreement and found that it contained provisions that were more favourable to the employees than the relevant award. The court also noted that the agreement was negotiated in good faith and that there was no evidence of coercion or unfair labour practices. The court concluded that the agreement satisfied the BOOT and was procedurally fair. Therefore, the court approved the proposed agreement.

The Fair Work Commission approved the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2024-2027 between Adamson Earthmovers Services Pty. Ltd. and the Construction, Forestry and Maritime Employees Union (Victorian Construction and General Division). The court ordered that the agreement be registered and be legally binding on the parties from the effective date of the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established