Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 6483

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/7922)

BDS CIVIL PTY LTD T/AS BDS CIVIL & CONSTRUCTION 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, 29 OCTOBER 2021

Application for approval of the BDS CIVIL PTY LTD T/As BDS CIVIL & CONSTRUCTION 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 BDS CIVIL PTY LTD T/As BDS CIVIL & CONSTRUCTION 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 5 November 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 before the court involved an application for the approval of the BDS Civil Pty Ltd trading as BDS Civil & Construction and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The primary dispute centred on whether the proposed agreement met the necessary legal standards for approval under relevant industrial relations laws. The matter was heard in the Fair Work Commission, Australia's workplace relations tribunal.

The central legal issues addressed by the court were whether the agreement complied with the requirements of the Fair Work Act 2009 and associated regulations. This included assessing if the agreement had been made in good faith, whether it contained the necessary minimum terms and conditions, and if it appropriately addressed the interests of both employers and employees. The court also needed to consider if the agreement was appropriately certified by an independent person and whether it had been negotiated in a manner consistent with industrial relations law.

The court found that the agreement was in compliance with all necessary legal standards. It was determined that the agreement had been made in good faith, contained all required minimum terms and conditions, and appropriately balanced the interests of both parties. The certification process was deemed to be properly conducted, and the negotiation process was found to be in accordance with the law. Consequently, the court approved the agreement, ensuring its enforceability under the Fair Work Act.

The final orders of the court approved the BDS Civil Pty Ltd trading as BDS Civil & Construction and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023, effective from the date of the decision. This approval allows the agreement to be registered and enforced, providing legal certainty for both the employer and the employees covered by the agreement.

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