Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 677

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/372)

PACC VICTORIA PTY LTD AS TRUSTEE FOR PACC BUSINESS TRUST AND THE CFMEU (VICTORIAN CONSTRUCTION ANDGENERAL DIVISION) SUBCONTRACTORS EARTHMOVING, EXCAVATION AND DRAINAGE ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 25 FEBRUARY 2022

Application for approval of the PACC VICTORIA PTY LTD AS TRUSTEE FOR PACC BUSINESS TRUST 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 PACC VICTORIA PTY LTD AS TRUSTEE FOR PACC BUSINESS TRUST 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 4 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, acting on behalf of the PACC Victoria Pty Ltd as trustee for PACC Business Trust, applied for approval of the PACC Business Trust and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The respondent was PACC Victoria Pty Ltd as trustee for PACC Business Trust. The dispute centred on the terms and conditions of employment and the agreement's compliance with relevant industrial laws. The Fair Work Commission was tasked with determining whether the agreement met the necessary legal criteria for approval.

The primary legal issue was whether the agreement complied with the requirements of the Fair Work Act 2009, specifically focusing on the procedural fairness of the bargaining process, the substantive fairness of the agreement's terms, and its overall compliance with the relevant industrial regulations. The Commission needed to assess whether the agreement was genuinely negotiated and whether it contained terms that were fair and reasonable. Additionally, the Commission examined whether the agreement adequately covered the intended scope of employment and the rights and obligations of both parties.

The Fair Work Commission found that the agreement had been genuinely negotiated between the parties and was not materially flawed in terms of its procedural fairness. The Commission concluded that the terms of the agreement were fair and reasonable, considering the nature of the work and the parties' respective positions. The agreement was deemed to be in compliance with the Fair Work Act 2009, and it met all the necessary criteria for approval. The Commission highlighted the agreement's comprehensive coverage of the intended scope of employment and its alignment with the broader industrial standards.

The Fair Work Commission approved the PACC Business Trust and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The approval was effective from 1 April 2020 and was to remain in force until 31 March 2023, subject to the parties' rights to apply for variations or termination under the Fair Work Act 2009.

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