Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 348

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/184)

ROCK SOLID CIVIL GROUP 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
COMMISSIONER LEE	MELBOURNE, 4 FEBRUARY 2022

Application for approval of the ROCK SOLID CIVIL GROUP 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 ROCK SOLID CIVIL GROUP 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 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 11 February 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

In this matter, the Construction, Forestry, Maritime, Mining and Energy Union sought approval for an enterprise agreement between ROCK SOLID CIVIL GROUP PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The application was lodged in the Fair Work Commission, Australia's workplace relations tribunal. The union sought to have the agreement approved under the Fair Work Act 2009, which provides a framework for the establishment of modern awards and enterprise agreements.

The central legal issue before the Commission was whether the agreement met the statutory criteria for approval. This involved determining if the agreement was a "simple" agreement, if it contained terms that were "genuinely agreed", and if it was made without coercion, undue influence or harassment. The Commission also needed to assess whether the agreement was in the public interest and met the "better off overall test", ensuring that employees would not be worse off than under the applicable award.

The Fair Work Commission concluded that the agreement was a simple agreement, as it did not cover matters that would otherwise be dealt with by modern awards or protected industrial action. The Commission found that the agreement was genuinely negotiated and not the result of coercion, undue influence or harassment. Furthermore, the Commission determined that the agreement met the better off overall test, as employees would receive additional benefits such as higher wages and better working conditions. The Commission also found that the agreement was in the public interest, promoting stability in the industry and providing a fair outcome for both employers and employees.

As a result, the Fair Work Commission approved the ROCK SOLID CIVIL GROUP PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The agreement now serves as a binding contract between the parties for the specified period, ensuring fair and equitable terms for all employees involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established