Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 605

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/315)

ADAMSON EARTHMOVERS PTY LTD AS TRUSTEE FOR THE ADAMSON FAMILY TRUST 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, 22 FEBRUARY 2022

Application for approval of the ADAMSON EARTHMOVERS PTY LTD AS TRUSTEE FOR THE ADAMSON FAMILY 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 ADAMSON EARTHMOVERS PTY LTD AS TRUSTEE FOR THE ADAMSON FAMILY 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 1 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 the approval of a proposed enterprise agreement between Adamson Earthmovers Pty Ltd, as trustee for the Adamson Family Trust, and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The dispute centred on the proposed Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The Commission was tasked with determining whether the agreement met the necessary criteria for approval under the Fair Work Act 2009.

The key legal issues that the Commission needed to address were whether the proposed agreement was a "better off overall test" (BOOT) agreement, if it contained provisions that were contrary to the provisions of the Fair Work Act or the Fair Work Regulations, and whether the agreement had been made in accordance with the procedural requirements of the Act. Specifically, the Commission had to assess whether the agreement provided employees with a fair and reasonable outcome, whether it contained any unfair or unreasonable provisions, and whether the agreement had been made in a manner that complied with the procedural fairness obligations.

The Fair Work Commission found that the proposed agreement did meet the BOOT, and that it contained no provisions that were contrary to the Act or the Regulations. The Commission determined that the agreement provided employees with a fair and reasonable outcome, as it offered improvements in pay and conditions, and it contained no unfair or unreasonable provisions. The Commission also found that the agreement had been made in accordance with the procedural requirements of the Act, as the employer had taken reasonable steps to ensure that the employees had been given the opportunity to examine and discuss the proposed agreement. Accordingly, the Commission approved the proposed agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established