Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 945

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/609)

GEARON CIVIL PTY LTD T/AS GEARON CIVIL PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION)SUBCONTRACTORS EARTHMOVING, EXCAVATION AND DRAINAGE ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 18 MARCH 2022

Application for approval of the GEARON CIVIL PTY LTD T/As GEARON CIVIL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the GEARON CIVIL PTY LTD T/As GEARON CIVIL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Construction, Forestry, Maritime, Mining and Energy Union. The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The title of the Agreement in the Notice of Employee Representational Rights was different to the title clause in the proposed Agreement. However, I am satisfied that in all of the circumstances and having regard to Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[1], this constitutes a minor procedural or technical error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

The Construction, Forestry, Maritime, Mining and Energy 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) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 March 2022. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union sought approval of a new enterprise agreement between Gearon Civil Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The primary dispute centred on the terms and conditions proposed within the agreement, specifically whether they adhered to the legal requirements under the Fair Work Act 2009 and whether they were fair and reasonable in the context of the industry and economic environment. The commission was tasked with determining whether the agreement met the necessary standards for approval.

The central legal issues that the commission had to resolve included verifying the agreement's compliance with the statutory provisions of the Fair Work Act 2009, particularly regarding the avoidance of adverse action and the protection of employees' rights. Additionally, the commission needed to assess whether the terms of the agreement were fair and reasonable, taking into account the principles of good faith bargaining, the economic circumstances of the parties, and the broader context of the industry. The commission also had to ensure that the agreement did not unfairly disadvantage any party and that it provided a fair and balanced outcome for both employers and employees.

Upon reviewing the agreement, the Fair Work Commission found that the proposed terms were consistent with the requirements of the Fair Work Act 2009. The commission determined that the agreement was fair and reasonable, considering the bargaining context, economic environment, and industry standards. The commission approved the agreement, finding that it did not unfairly disadvantage either party and provided a balanced outcome. This decision was based on the commission's assessment that the terms were negotiated in good faith and reflected a fair consideration of the interests of both employers and employees. The commission concluded that the agreement met the necessary criteria for approval and was thus authorised under the Fair Work Act 2009.

The final order of the Fair Work Commission was the approval of the Gearon Civil Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023, effective from the date of the commission's decision. This approval meant that the agreement could be implemented as the governing contract between Gearon Civil Pty Ltd and the union for the specified period. The decision provided certainty and legal validity to the terms outlined in the agreement, ensuring that both parties could proceed with the implementation of the new conditions of employment.

Construction, Forestry, Maritime, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established