Construction, Forestry, Maritime, Mining and Energy Union

[2021] FWCA 5965

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/7352)

B&R WORKFORCE 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, 23 SEPTEMBER 2021

Application for approval of the B&R Workforce 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 B&R Workforce 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 30 September 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 court involved an application for the approval of a new enterprise agreement between B&R Workforce Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The agreement in question was the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The application was made to the Fair Work Commission, which was tasked with determining whether the agreement met the requirements under the Fair Work Act 2009. The dispute centred around the terms and conditions proposed in the agreement and their compliance with the legislative framework governing enterprise agreements.

The central legal issue before the court was whether the proposed agreement contained all the mandatory terms and conditions required by the Fair Work Act 2009, and whether it was appropriate for the Commission to approve it as a new enterprise agreement. The court had to consider whether the agreement provided for minimum rates of pay, leave entitlements, and other provisions as mandated by the Act. Additionally, the court had to assess whether the agreement had been negotiated in good faith and whether it met the criteria for approval under the Fair Work Act.

In delivering its decision, the court meticulously examined the proposed agreement against the statutory requirements. The court found that the agreement included all necessary mandatory terms and conditions, including minimum rates of pay, leave entitlements, and other provisions as required by the Fair Work Act. The court also concluded that the agreement had been negotiated in good faith and met the criteria for approval. Consequently, the court approved the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023, deeming it suitable for implementation. The final orders of the court were to approve the agreement, allowing it to take effect from the specified commencement date.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established