Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 603

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/311)

SWEENEY CIVIL CONSTRUCTION PTY LTD ATF SWEENEY CIVIL CONSTRUCTION TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 22 FEBRUARY 2022

Application for approval of the SWEENEY CIVIL CONSTRUCTION PTY LTD ATF SWEENEY CIVIL CONSTRUCTION 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 SWEENEY CIVIL CONSTRUCTION PTY LTD ATF SWEENEY CIVIL CONSTRUCTION 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 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.

COMMISSIONER

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 the Sweeney Civil Construction Pty Ltd ATF Sweeney Civil Construction Trust and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The applicant, Sweeney Civil Construction, sought the endorsement of the agreement which outlines the terms and conditions for subcontractors in the earthmoving, excavation, and drainage sectors. The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) opposed the application on several grounds, primarily concerning the fairness and adequacy of the proposed agreement in protecting the rights and conditions of the workers involved.

The key legal issues addressed by the Commission were whether the proposed agreement met the criteria for approval under the Fair Work Act 2009, specifically concerning the agreement's fairness and its capacity to provide adequate protections for the employees. The Commission examined the balance of the agreement, the procedural fairness in its development, and whether it provided for fair and reasonable terms and conditions of employment. Additionally, the Commission considered whether the agreement adequately protected the rights of workers and if it complied with relevant labour laws.

In its reasoning, the Commission found that the agreement did not meet the statutory requirements for approval. The Commission highlighted several areas of concern, including the lack of adequate provisions for worker health and safety, insufficient protections for wages and conditions, and procedural issues in the negotiation process. The Commission concluded that the agreement did not provide fair and reasonable terms and conditions of employment, nor did it sufficiently protect the rights of workers. Consequently, the application for approval was dismissed.

The Commission's final orders were that the Sweeney Civil Construction Pty Ltd ATF Sweeney Civil Construction Trust and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023 was not approved under the Fair Work Act 2009. The Commission directed the parties to address the identified deficiencies and encouraged further negotiations to reach a more satisfactory agreement that meets the statutory requirements for approval.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established