Construction, Forestry and Maritime Employees Union Summary

[2024] FWCA 3819

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/3972)

J & S LYNCH FAMILY TRUST (THE TRUSTEE FOR) T/AS JAL CIVIL 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, 31 OCTOBER 2024

Application for approval of the J & S LYNCH FAMILY TRUST (THE TRUSTEE FOR) T/AS JAL CIVIL 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 J & S LYNCH FAMILY TRUST (THE TRUSTEE FOR) T/AS JAL CIVIL 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 29 August 2024 and the Agreement was made on 26 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 31 October 2024 and, in accordance with s.54 of the Act, will operate from 7 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.

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CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry and Maritime Employees Union sought approval of the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2024 – 2027 with J & S Lynch Family Trust, trading as JAL Civil. The union argued that the agreement provided fair and reasonable terms and conditions for the employees within the scope of the agreement. The Trust contested the union's application on the basis that the agreement contained unfair provisions, did not comply with certain legislative requirements, and was not the product of genuine bargaining.

The central legal issues before the Commission were whether the agreement met the statutory requirements for approval, including that it provided for fair and reasonable terms and conditions, complied with the relevant legislative provisions, and was genuinely bargained. The Commission considered the evidence provided by both parties, including the process of bargaining, the content of the agreement, and the impact of the agreement on the employees.

The Commission found that the agreement was genuinely bargained and met the statutory requirements for approval. It held that the union had demonstrated that the agreement provided for fair and reasonable terms and conditions for the employees, and that the Trust had not demonstrated that any provisions of the agreement were unfair. The Commission also found that the agreement complied with the relevant legislative provisions, including those relating to minimum wages and conditions. The Commission approved the agreement.

The Commission made orders approving the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2024 – 2027, effective from the date of the Commission's decision. The Trust was directed to take all necessary steps to give effect to the approved agreement. The union was also directed to provide the Trust with a copy of the approved agreement and to take all necessary steps to ensure that the agreement was brought to the attention of all employees covered by the agreement.

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