Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 7097

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/8648)

VICDIG 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, 13 DECEMBER 2021

Application for approval of the VICDIG 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 VICDIG 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 20 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

The case involved an application for the approval of the VICDIG PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The application was heard by the Fair Work Commission, which is tasked with overseeing the approval of enterprise agreements under Australian labour law. The dispute centred on whether the proposed agreement met the legal requirements for approval, including whether it provided for the fair remuneration and conditions of employment for the relevant workers.

The legal issues before the court were whether the proposed agreement complied with the Fair Work Act 2009 and whether it was free from any unfair provisions. Specifically, the court needed to determine if the agreement adequately covered all the mandatory topics set out in the Fair Work Act and whether it met the procedural fairness requirements for approval. The court also considered whether the agreement adequately provided for the workers' rights and protections under Australian labour law.

The Fair Work Commission found that the proposed agreement met the legal requirements for approval. The agreement was found to cover all the mandatory topics required by the Fair Work Act and was procedurally sound. The Commission determined that the agreement provided for fair remuneration and conditions of employment for the relevant workers and did not contain any unfair provisions. The Commission was satisfied that the agreement had been appropriately negotiated and that it met the standards for approval under Australian labour law. As a result, the Fair Work Commission approved the agreement.

The Fair Work Commission approved the VICDIG PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023, finding it to be compliant with the legal requirements for approval. The agreement was deemed to provide for fair remuneration and conditions of employment for the relevant workers and did not contain any unfair provisions.

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