Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 892

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/544)

SMW EARTHMOVING 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, 15 MARCH 2022

Application for approval of the SMW EARTHMOVING 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 SMW EARTHMOVING 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 22 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

The matter before the Fair Work Commission involved an application for approval of the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023 between SMW Earthmoving Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The agreement sought to establish terms and conditions of employment for employees engaged by SMW Earthmoving Pty Ltd who perform subcontractor roles in earthmoving, excavation, and drainage activities. The union argued that the agreement fairly reflected the needs of the workforce, while SMW Earthmoving Pty Ltd supported the application on the basis that it provided for fair and reasonable terms for both parties.

The key legal issues before the Commission were whether the agreement met the criteria for approval under the Fair Work Act 2009, including whether it was free from unlawful content, provided for genuine bargaining, and included provisions for a fair and efficient workplace. The Commission needed to consider whether the terms and conditions in the agreement were reasonable and whether there was evidence of genuine agreement between the parties. Additionally, the Commission needed to ensure that the agreement did not undermine the safety and health of employees or contain any discriminatory provisions.

The Commission determined that the agreement met the necessary criteria for approval. It found that the agreement was free from unlawful content, provided for genuine bargaining, and included provisions for a fair and efficient workplace. The Commission was satisfied that the terms and conditions were reasonable and reflected the needs of both the employer and the employees. It noted that the agreement included provisions for safety and health, as well as provisions that were designed to ensure fair and efficient operations. The Commission concluded that the agreement was in the best interests of the employees and the employer, and thus approved the agreement under the Fair Work Act 2009.

The final orders of the Commission were that the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023 be approved as a registered agreement under the Fair Work Act 2009. The agreement was to take effect from the date of the Commission's decision and remain in force until such time as it is terminated in accordance with the provisions of the Act.

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