Construction, Forestry and Maritime Employees Union Summary

[2024] FWCA 3887

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/3992)

PACC BUSINESS TRUST (THE TRUSTEE FOR) T/AS PACC VICTORIA 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 BELL	MELBOURNE, 7 NOVEMBER 2024

Application for approval of the PACC BUSINESS TRUST (THE TRUSTEE FOR) T/AS PACC VICTORIA 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 PACC BUSINESS TRUST (THE TRUSTEE FOR) T/AS PACC VICTORIA 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) 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 2 July 2024 and the Agreement was made on 9 October 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

The matter before the Fair Work Commission involved an application for approval of an enterprise agreement between PACC Business Trust, trading as PACC Victoria Pty Ltd, and the Construction, Forestry and Maritime Employees Union (Victorian Construction and General Division). The enterprise agreement in question, the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2024-2027, was brought before the Commission for its endorsement and formal approval.

The central legal issues the Commission had to address pertained to whether the enterprise agreement met the necessary legal criteria under the Fair Work Act 2009. These criteria included verifying if the agreement was made in good faith and if it complied with the provisions of the Act, including those related to procedural fairness, coverage of the agreement, and the protection of employees’ rights. Additionally, the Commission had to ensure that the agreement did not disadvantage employees in terms of their wages, conditions, or other entitlements.

In its decision, the Fair Work Commission found that the enterprise agreement complied with the requirements of the Fair Work Act 2009. The Commission was satisfied that the agreement had been made in good faith, covered the necessary terms and conditions, and did not disadvantage employees. The Commission also noted that the process of developing the agreement involved appropriate consultation and negotiation between the employer and the union. Consequently, the Commission approved the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2024-2027, deeming it to be a valid and enforceable enterprise agreement under the Act.

The final orders of the Fair Work Commission included the approval of the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2024-2027 as an enterprise agreement for the purposes of the Fair Work Act 2009. This approval meant that the agreement would now be binding on the parties involved and would govern the employment terms and conditions for the specified period.

Construction, Forestry and Maritime Employees Union

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