Construction, Forestry, Maritime, Mining and Energy Union

[2021] FWCA 7110

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/8758)

MELBOURNE GRADERS 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 JOHNS	SYDNEY, 14 DECEMBER 2021

Application for approval of the MELBOURNE GRADERS PTY. LTD. 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 MELBOURNE GRADERS 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.

[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 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 December 2021. 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 the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought approval for a proposed enterprise agreement between Melbourne Graders Pty. Ltd. and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The application involved scrutiny of the proposed agreement's terms and conditions, as well as its compliance with the Fair Work Act 2009.

The primary legal issue was whether the proposed enterprise agreement met the statutory requirements under the Fair Work Act, specifically whether it satisfied the "better off overall test" (BOOT). This test requires that employees be no worse off financially and, in some cases, better off overall compared to their previous conditions of employment. Additionally, the court needed to determine whether the agreement included all necessary provisions, was free from prohibited content, and was appropriately negotiated.

In assessing the application, the Fair Work Commission considered the financial implications of the proposed agreement on the employees, as well as the negotiation process undertaken by the parties. The Commission concluded that the agreement was appropriately negotiated and met the statutory requirements, including the BOOT. It found that the proposed agreement provided fair and reasonable terms and conditions for the employees, ensuring no detriment and, in some cases, providing benefits. The Commission approved the application, finding that the agreement was compliant with the relevant legislation.

The final orders of the Commission were to approve the Melbourne Graders Pty. Ltd. and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023, effective from the date of approval. This decision allowed the agreement to be implemented, providing the agreed terms and conditions for the employees involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established