Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 45

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2021/9185)

MARTELLO CONCRETING PTY. LTD. AS TRUSTEE FOR MARTELLO FAMILY TRUST T/AS MARCON CIVIL 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, 10 JANUARY 2022

Application for approval of the MARTELLO CONCRETING PTY. LTD. AS TRUSTEE FOR MARTELLO FAMILY TRUST T/As MARCON CIVIL 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 MARTELLO CONCRETING PTY. LTD. AS TRUSTEE FOR MARTELLO FAMILY TRUST T/As MARCON CIVIL 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 17 January 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 case before the Fair Work Commission, Martello Concreting Pty Ltd as trustee for Martello Family Trust t/as Marcon Civil and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) sought approval of a proposed enterprise agreement. The agreement, titled the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023, was the subject of this application. The dispute centred on whether the proposed agreement complied with the relevant provisions of the Fair Work Act 2009 and met the necessary criteria for approval under the Fair Work Regulations 2009. The Commission was tasked with determining whether the agreement provided fair and reasonable terms and conditions of employment, and whether it was made in good faith.

The central legal issues before the Commission were whether the proposed agreement adhered to the requirements of the Fair Work Act and Regulations, including whether it provided for fair and reasonable terms and conditions, and whether it was made in good faith. Additionally, the Commission had to assess whether the agreement appropriately addressed the needs and interests of both employees and employers, and whether it complied with the procedural requirements for enterprise agreement approval. The Commission also considered whether any provisions of the agreement contravened the public interest or were contrary to the principles of the Fair Work Act.

The Fair Work Commission examined the proposed agreement in detail, taking into account the submissions from both Martello Concreting and the CFMEU. The Commission assessed the agreement against the statutory criteria, including whether it provided for fair and reasonable terms and conditions, and whether it was made in good faith. The Commission found that the proposed agreement met the necessary criteria for approval. It was determined that the agreement provided for fair and reasonable terms and conditions, and it was made in good faith. The Commission also found that the agreement appropriately balanced the needs and interests of both employees and employers, and it complied with the procedural requirements for enterprise agreement approval. Consequently, the Commission approved the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023.

The Fair Work Commission approved the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The Commission found that the agreement met the necessary criteria for approval under the Fair Work Act and Regulations. It was determined that the agreement provided for fair and reasonable terms and conditions, and it was made in good faith. The Commission also found that the agreement appropriately balanced the needs and interests of both employees and employers, and it complied with the procedural requirements for enterprise agreement approval. The approval of the agreement means that it will now govern the employment terms and conditions for the relevant employees during the specified period.

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