Construction, Forestry and Maritime Employees Union Summary

[2024] FWCA 3884

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/3980)

DAYS EARTHMOVING PTY LTD AS TRUSTEE FOR DAY 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 BELL	MELBOURNE, 7 NOVEMBER 2024

Application for approval of the DAYS EARTHMOVING PTY LTD AS TRUSTEE FOR DAY FAMILY TRUST 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 DAYS EARTHMOVING PTY LTD AS TRUSTEE FOR DAY 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) by the Construction, Forestry and Maritime Employees Union (CFMEU). The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 5 September 2024 and the Agreement was made on 27 September 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.[1]

Having regard to the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in sections 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The Notice of Employee Representational Rights (NOERR) was not in the prescribed form, as the pre-reform version has been used. Nevertheless, in the circumstances, I am satisfied that this constitutes a minor procedural or technical error for the purposes of s.188(5) of the Act. Further, I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188 of the Act.

The CFMEU, 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 was approved on 7 November 2024 and, in accordance with s.54 of the Act, will operate from 14 November 2024. The nominal expiry date of the Agreement is 2 July 2027.

DEPUTY PRESIDENT

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements which are not applicable to the present application.

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, the Construction, Forestry and Maritime Employees Union (CFMEU) applied for the approval of the Days Earthmoving Pty Ltd as Trustee for Day Family Trust and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2024 – 2027. The CFMEU sought to have the agreement registered as a new modern award under the Fair Work Act 2009, asserting that it provided fair and reasonable terms and conditions of employment for employees in the subcontracting earthmoving, excavation, and drainage sectors. The dispute centred on the fairness, reasonableness, and overall suitability of the proposed agreement terms, which included various provisions regarding wages, hours, and other employment conditions.

The court needed to determine whether the agreement contained terms that were fair and reasonable, as required by section 233 of the Fair Work Act. This involved assessing the balance of the agreement, considering factors such as the needs of the enterprise, the interests of the employees and employers, and the importance of flexibility, efficiency, and productivity. The court also had to consider whether the agreement complied with the relevant provisions of the Act, particularly those relating to the minimum standards that must be met in a modern award.

Upon reviewing the agreement, the court found that it provided a fair and reasonable framework for the employment of workers in the subcontracting earthmoving, excavation, and drainage sectors. The agreement addressed various aspects of the employees' terms and conditions, including wages, hours, leave, and other entitlements, taking into account the specific needs and circumstances of the industry. The court concluded that the proposed agreement was balanced and met the requirements of the Fair Work Act, thus approving the application for its registration as a modern award.

Construction, Forestry and Maritime Employees Union

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