Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 6074

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/7604)

H PILING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS PILING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 30 SEPTEMBER 2021

Application for approval of the H Piling Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Piling Enterprise Agreement 2020-2023

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has made an application for approval of an enterprise agreement known as the H Piling Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Piling Enterprise Agreement 2020-2023 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval has 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 CFMMEU, 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) and based on its declaration, I note that the Agreement covers the CFMMEU.

[5] The Agreement was approved on 30 September 2021 and, in accordance with s 54, will operate from 7 October 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicants, H Piling Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division), applied to the Fair Work Commission for approval of a subcontractor piling enterprise agreement. The agreement, set to run from 2020 to 2023, covers a range of terms and conditions for workers employed by H Piling Pty Ltd under contracts with principal contractors. The Fair Work Commission was tasked with assessing whether the agreement met the requirements for approval under the Fair Work Act 2009.

The central legal issues before the Commission were whether the agreement provided for minimum terms and conditions, and whether it complied with the good faith bargaining requirements. Specifically, the Commission had to determine if the agreement satisfied the statutory minimum terms and conditions set out in the Fair Work Act and whether the bargaining process leading to the agreement was conducted in good faith. Additionally, the Commission needed to ensure that the agreement did not unfairly discriminate against any class of employees.

The Commission found that the agreement met the statutory minimum terms and conditions and was the product of good faith bargaining. The terms of the agreement provided for wages, leave entitlements, and other employment conditions that were no less favourable than the relevant award or national employment standards. The Commission also concluded that the bargaining process was conducted in good faith, with both parties engaging in meaningful discussions and negotiations. The agreement was deemed not to unfairly discriminate against any class of employees and was thus approved.

The Fair Work Commission approved the H Piling Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Piling Enterprise Agreement 2020-2023. The Commission issued a certificate of approval for the agreement, which will apply to all workers covered by the agreement until it expires or is superseded by a new 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