Construction, Forestry, Maritime, Mining and Energy Union

[2021] FWCA 7344

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/9109)

RELIABLE EQUIPMENT HIRE PTY LTD T/AS INTOIT CIVILS 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, 30 DECEMBER 2021

Application for approval of the RELIABLE EQUIPMENT HIRE PTY LTD T/As INTOIT CIVILS and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023

[1] An application has been made for approval of an enterprise agreement known as the RELIABLE EQUIPMENT HIRE PTY LTD T/As INTOIT CIVILS 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.

[2] 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.

[3] 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.

[4] 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.

[5] 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 January 2022. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 318.

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for approval of the Reliable Equipment Hire Pty Ltd T/As IntoIt Civils and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The applicant, Reliable Equipment Hire Pty Ltd T/As IntoIt Civils, sought approval of the enterprise agreement under the Fair Work Act 2009. The respondent, CFMEU, had not opposed the application but had made submissions concerning certain aspects of the agreement. The Commission was required to determine whether the agreement met the requirements for approval under the Act.

The primary legal issues before the Commission were whether the agreement had been made in accordance with the procedural requirements of the Act, whether it contained the necessary minimum terms and conditions, and whether it complied with the good faith bargaining requirement. The Commission considered whether the agreement had been made without coercion or undue influence, whether it provided for fair and reasonable terms and conditions of employment, and whether it had been negotiated in good faith between the parties. The Commission also considered whether the agreement complied with the general protections provisions of the Act and whether it was consistent with the objects of the Act.

The Commission found that the agreement had been made in accordance with the procedural requirements of the Act, and that it contained the necessary minimum terms and conditions. The Commission noted that the agreement had been negotiated in good faith between the parties and that it provided for fair and reasonable terms and conditions of employment. The Commission also found that the agreement complied with the general protections provisions of the Act and was consistent with the objects of the Act. The Commission approved the agreement, subject to certain minor modifications to ensure compliance with the Act.

The Commission made certain modifications to the agreement to ensure compliance with the Act, including modifying the definition of "employee" to include all employees of the employer, and clarifying the provisions relating to casual loading and penalty rates. The Commission also made minor amendments to the agreement to ensure consistency with the Act and to address certain other technical issues. The modified agreement was approved by the Commission and registered with the Fair Work Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established