Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 6154

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/7592)

CKI INDUSTRIAL 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, 7 OCTOBER 2021

Application for approval of the CKI INDUSTRIAL 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 CKI INDUSTRIAL 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 14 October 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and CKI Industrial Pty Ltd sought approval for a proposed enterprise agreement from the Fair Work Commission (FWC). The agreement, which was to apply to subcontractors involved in earthmoving, excavation, and drainage activities in Victoria, aimed to regulate the employment terms and conditions of the workers. The FWC was tasked with determining whether the agreement should be approved under the Fair Work Act 2009.

The primary legal issues before the FWV included whether the proposed agreement met the requirements of the Fair Work Act, particularly in terms of its coverage, fairness, and compliance with procedural requirements. Key points of contention were the scope of the agreement's applicability and whether it adequately covered the necessary aspects of employment conditions. The FWC also needed to assess whether the agreement provided for a fair and reasonable set of terms and conditions for the employees involved.

In examining the application, the FWC found that the proposed agreement adequately addressed the necessary aspects of employment conditions and was applicable to the intended workforce. The FWC concluded that the agreement was fair and reasonable, taking into account the specific industry context and the interests of both employers and employees. The FWC approved the agreement, noting that it provided a balanced set of terms and conditions that met the requirements of the Fair Work Act.

The FWC's final orders included the approval of the CKI Industrial Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023, effective from the date of approval. The agreement was set to govern the employment terms and conditions of the relevant employees within the specified industry for the duration of 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