Construction, Forestry and Maritime Employees Union Summary

[2024] FWCA 3769

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/3818)

VAN PUTTEN FAMILY TRUST (THE TRUSTEE FOR) T/AS CIVILTEK EARTHMOVING AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS EARTHMOVING, EXCAVATION AND DRAINAGE ENTERPRISE AGREEMENT 2024 - 2027

Building, metal and civil construction industries
COMMISSIONER MATHESON	SYDNEY, 29 OCTOBER 2024

Application for approval of the VAN PUTTEN FAMILY TRUST (THE TRUSTEE FOR) T/AS CIVILTEK EARTHMOVING 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 VAN PUTTEN FAMILY TRUST (THE TRUSTEE FOR) T/AS CIVILTEK EARTHMOVING 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 and 188 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 5 November 2024. The nominal expiry date of the Agreement is 2 July 2027.

There is an obvious error in clause 2.1 of the Agreement in that the employer’s ABN is incorrectly stated. I sought the views of the parties regarding how this should be addressed. Pursuant to s.218A of the Act the Agreement is varied such that the ABN in clause 2.1 of the Agreement, being ‘91 430 114 800’ is deleted and replaced with the ABN ‘91 438 114 800’.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of a new enterprise agreement between Civiltek Earthmoving and the Construction, Forestry and Maritime Employees Union (CFMEU) for the period 2024-2027. The applicant, the Van Putten Family Trust (acting as trustee for Civiltek Earthmoving), sought the Commission's approval of the agreement, which was necessary to ensure its enforceability and compliance with the Fair Work Act. The CFMEU, representing the employees, also participated in the proceedings, indicating its support for the agreement.

The central legal issue the Commission had to resolve was whether the proposed agreement met the statutory requirements for approval under the Fair Work Act. This involved assessing the agreement's compliance with provisions relating to good faith bargaining, coverage, and the avoidance of prohibited content. The Commission had to ensure that the agreement was fairly negotiated, covered the appropriate employees, and did not include any terms that were contrary to the principles of the Act or other relevant laws.

In reaching its decision, the Commission examined the negotiation process and the contents of the agreement in detail. The evidence presented indicated that the agreement was the result of good faith bargaining between the parties. The Commission found that the agreement was comprehensive, covered all relevant employees, and did not contain any prohibited content. The terms of the agreement were deemed to be fair and reasonable, taking into account the interests of both the employer and the employees. Based on these findings, the Commission approved the agreement, confirming its enforceability and compliance with the Act.

As a result of the Commission's approval, the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2024-2027 is now legally binding between Civiltek Earthmoving and the employees represented by the CFMEU. The approval ensures that the terms of the agreement can be enforced and that the parties are bound by its provisions for the duration of 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