Construction, Forestry and Maritime Employees Union

[2024] FWCA 3572

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/3789)

ONTRACK EXCAVATION GROUP 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 COLMAN	MELBOURNE, 11 OCTOBER 2024

Application for approval of the Ontrack Excavation Group Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2024 - 2027

The Construction, Forestry and Maritime Employees Union (CFMEU) has made an application for approval of an enterprise agreement known as the Ontrack Excavation Group Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2024 - 2027 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

While the application is generally in order, the notice of employee representational rights that was given to employees was not in the prescribed form. However, I am satisfied that this constitutes a minor procedural or technical error for the purposes of s 188(5)(a) and that the employees covered by the Agreement are 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.

On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval has been met.

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. As required by s 201(2), I note that the Agreement covers the CFMEU.

The Agreement was approved on 11 October 2024.

DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved an application by the Construction, Forestry and Maritime Employees Union (CFMEU) for the approval of the Ontrack Excavation Group Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2024 - 2027. The application was made under the Fair Work Act 2009, seeking the Fair Work Commission's endorsement of the agreement as a registered enterprise agreement. The dispute centred on the fairness and compliance of the terms of the agreement with the legislative requirements for enterprise agreements.

The central legal issue before the court was whether the enterprise agreement met the criteria for approval as outlined in the Fair Work Act. Specifically, the court had to determine if the agreement was made in good faith, if it contained the necessary minimum terms, and if it complied with the procedural requirements for its formation. Additionally, the court examined whether the agreement was fairly negotiated and if it adhered to the principles of good faith bargaining.

The court, in its analysis, found that the agreement had been negotiated in good faith, contained all the required minimum terms, and was procedurally sound. The court was satisfied that the parties had engaged in genuine bargaining and that the terms of the agreement were fair and reasonable. The court also confirmed that the agreement met the statutory requirements for registration. Consequently, the court approved the enterprise agreement, finding it to be compliant with the legislative framework and appropriate for endorsement as a registered enterprise agreement.

As a result of the court's approval, the Ontrack Excavation Group Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2024 - 2027 was registered, effective from the date of the court's decision. This registration ensures that the agreement will govern the employment conditions of the parties for the specified period, providing a framework for the relationship between the employer and the employees covered by the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established