Construction, Forestry, Maritime, Mining and Energy Union

[2021] FWCA 6845

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/8368)

ROUGHAN HAULAGE AND EXCAVATIONS 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
DEPUTY PRESIDENT MASSON	MELBOURNE, 25 NOVEMBER 2021

Application for approval of the ROUGHAN HAULAGE AND EXCAVATIONS 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 ROUGHAN HAULAGE AND EXCAVATIONS 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 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 2 December 2021. 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

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union, acting on behalf of several employees, applied for the approval of the ROUGHAN HAULAGE AND EXCAVATIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The applicant argued that the agreement met the necessary requirements for approval under the Fair Work Act 2009. The employer contested the application, asserting that certain provisions of the agreement did not comply with the Act.

The central legal issues before the Commission were whether the agreement contained terms that were contrary to public policy and whether the agreement had been genuinely negotiated between the parties. The Commission examined the terms of the agreement to determine if they met the criteria for approval, considering factors such as the fairness of the agreement and whether it provided for the proper administration of the workplace. The Commission also had to assess whether the agreement had been negotiated in good faith and whether it provided for proper mechanisms for dispute resolution.

After careful consideration, the Commission found that the agreement was not contrary to public policy and had been genuinely negotiated between the parties. The Commission noted that the agreement provided for reasonable terms and conditions of employment, including provisions for pay rates, penalties, allowances, and dispute resolution mechanisms. The Commission also found that the agreement was consistent with the principles of the Fair Work Act 2009 and provided for the proper administration of the workplace. As a result, the application for approval was granted, and the agreement was registered as a registered agreement under the Fair Work Act 2009.

The Fair Work Commission approved the ROUGHAN HAULAGE AND EXCAVATIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023 as a registered agreement under the Fair Work Act 2009. The employer and the union were directed to take all necessary steps to give effect to the agreement and to inform their employees of its terms. The agreement was registered as a registered agreement from the date of the Commission's decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established