Construction, Forestry and Maritime Employees Union Summary

[2024] FWCA 3696

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/3720)

DUNDRUM CIVIL (VIC) 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, 24 OCTOBER 2024

Application for approval of the Dundrum Civil (VIC) 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 Dundrum Civil (VIC) 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 13 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). Further, having regard to the content of the declaration 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 24 October 2024 and, in accordance with s.54 of the Act, will operate from 31 October 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

The case involved an application for the approval of an enterprise agreement between the Dundrum Civil (VIC) Pty Ltd and the Construction, Forestry and Maritime Employees Union (Victorian Construction and General Division) for the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2024-2027. The application was brought before the Fair Work Commission, with the Commission's primary role being to ensure the agreement's compliance with the Fair Work Act 2009. The Union and the employer sought the Commission's approval of the agreement, which included terms related to wages, working conditions, dispute resolution mechanisms, and other employment-related matters.

The central legal issues that the Commission needed to address involved whether the agreement met the requirements of the Fair Work Act, particularly in terms of its coverage, fairness, and compliance with the "better off overall test" (BOOT). The Commission had to determine if the agreement provided employees with terms and conditions that were no worse than what they would have under the relevant award or modern award, and if it contained mandatory provisions as required by the Act. Additionally, the Commission assessed whether the agreement was made in good faith and whether there was proper consultation with the employees.

The Commission thoroughly examined the agreement, considering the submissions from both the Union and the employer. It evaluated the fairness of the terms and conditions provided in the agreement, ensuring that they met the legislative requirements. The Commission found that the agreement was comprehensive, covered all necessary provisions, and was in compliance with the Fair Work Act. It was determined that the agreement provided employees with terms and conditions that were no worse than those under the relevant award or modern award and contained all mandatory provisions. The Commission concluded that the agreement was made in good faith and that proper consultation had taken place. Based on these findings, the Commission approved the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2024-2027.

The Fair Work Commission approved the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2024-2027 between Dundrum Civil (VIC) Pty Ltd and the Construction, Forestry and Maritime Employees Union (Victorian Construction and General Division). The Commission determined that the agreement met the requirements of the Fair Work Act, was fair, and complied with the better off overall test. The Commission also found that the agreement contained all mandatory provisions, was made in good faith, and that proper consultation had occurred.

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