Construction, Forestry, Maritime, Mining and Energy Union

[2021] FWCA 6951

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/8493)

JAAD CIVIL & LANDSCAPE PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS LANDSCAPE CONSTRUCTION ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 2 DECEMBER 2021

Application for approval of the JAAD CIVIL & LANDSCAPE PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Landscape Construction Enterprise Agreement 2020-2023

[1] An application has been made for approval of an enterprise agreement known as the JAAD CIVIL & LANDSCAPE PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Landscape Construction 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 9 December 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, an application was brought by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and JAAD Civil & Landscape Pty Ltd to approve the JAAD Civil & Landscape Pty Ltd and CFMEU (Victorian Construction and General Division) Subcontractors Landscape Construction Enterprise Agreement 2020-2023. The dispute involved the terms and conditions of employment for employees engaged by JAAD Civil & Landscape Pty Ltd as subcontractors.

The central legal issue before the Commission was whether the proposed enterprise agreement met the requirements of the Fair Work Act 2009, including compliance with the "better-off-overall" test, which ensures that employees are not worse off financially under the new agreement compared to their existing terms. Additionally, the Commission had to consider whether the agreement was made in good faith and whether it included necessary provisions to protect employees' rights.

The Fair Work Commission, after reviewing the evidence and submissions from both parties, found that the proposed agreement met the statutory requirements. It was determined that the employees would not be worse off financially and that the agreement was made in good faith. The Commission approved the enterprise agreement, highlighting the benefits such as improved working conditions and additional protections for the employees. The decision was made with the understanding that the agreement would contribute positively to the working relationship between the employer and the employees.

As a result, the Fair Work Commission approved the JAAD Civil & Landscape Pty Ltd and CFMEU (Victorian Construction and General Division) Subcontractors Landscape Construction Enterprise Agreement 2020-2023, effective from the date of the decision. This approval ensures that the agreement will govern the employment conditions for the relevant period, providing a clear framework for the rights and obligations of both the employer and the employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established