Construction, Forestry, Maritime, Mining and Energy Union

[2021] FWCA 6603

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/8128)

DELCON CIVIL 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, 10 NOVEMBER 2021

Application for approval of the DELCON CIVIL 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 DELCON CIVIL 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 17 November 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

The case before the Fair Work Commission involved an application for the approval of the DELCON CIVIL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The dispute arose from the process and content of the enterprise agreement, which was submitted for registration under the Fair Work Act 2009. The parties involved were the applicant, DELCON CIVIL PTY LTD, and the respondent, CFMEU (Victorian Construction and General Division).

The primary legal issues that the Commission needed to address were whether the agreement was genuinely a product of genuine bargaining and whether it adhered to the procedural requirements set out in the Fair Work Act. Additionally, the Commission had to consider whether the agreement was consistent with the Fair Work (Registered Organisations) Act 2009 and the Fair Work Regulations 2009. The Commission also needed to determine if the agreement included all the prescribed minimum terms and conditions of employment as required by the Act.

In reaching its decision, the Commission examined the bargaining process and the content of the agreement. The Commission found that the agreement was indeed the product of genuine bargaining and that all procedural requirements were met. The agreement was found to be consistent with the relevant Acts and Regulations. Furthermore, it included all the prescribed minimum terms and conditions. The Commission also noted the fairness and reasonableness of the agreement, taking into account the specific needs and circumstances of the parties involved.

As a result, the Fair Work Commission approved the DELCON CIVIL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. This approval means that the agreement is now legally binding and enforceable under the Fair Work Act. The decision underscores the importance of genuine bargaining and adherence to legislative requirements in the formation of enterprise agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established