Construction, Forestry and Maritime Employees Union

[2024] FWCA 3669

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/3657)

MITCHELL’S EARTHMOVING 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, 22 OCTOBER 2024

Application for approval of the Mitchell’s Earthmoving 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 Mitchell’s Earthmoving 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 10 July 2024 and the Agreement was made on 10 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 22 October 2024 and, in accordance with s.54 of the Act, will operate from 29 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.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry and Maritime Employees Union (CFMEU) and Mitchell’s Earthmoving Pty Ltd sought approval for a new enterprise agreement. This application was brought before the Fair Work Commission, where the central issue was whether the proposed terms of the agreement met the requirements of the Fair Work Act 2009. Specifically, the court had to determine if the agreement was fair and reasonable, whether it provided adequate protections for employees, and if it complied with all relevant statutory provisions.

The legal issues before the court involved assessing whether the proposed agreement appropriately balanced the interests of both employers and employees, in line with the principles of the Fair Work Act. The court also needed to consider the specific provisions regarding wages, working conditions, and dispute resolution mechanisms. A key concern was whether the agreement adequately addressed the needs and protections of employees, especially those in lower-paid or less secure positions.

The Fair Work Commission examined the details of the proposed agreement, taking into account the economic context and industry standards. The court found that the agreement contained provisions that were fair and reasonable, providing adequate protections for employees while also allowing for operational flexibility for the employer. The agreement was deemed to be in line with the principles of the Fair Work Act and was approved as it balanced the interests of both parties and met all statutory requirements.

The court approved the application, confirming the Mitchell’s Earthmoving Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2024 – 2027 as compliant with the Fair Work Act. This decision ensures that the terms of the agreement will now govern the employment conditions between the employer and the employees within the specified period.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established