Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 5955

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/7397)

GATT EXCAVATIONS 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 GATT EXCAVATIONS 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
GATT EXCAVATIONS 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 involved an application for the approval of the GATT Excavations Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The Fair Work Commission was asked to review the agreement and determine whether it should be approved and registered under the Fair Work Act 2009. The application was made by the union, and the employer contested the application, raising concerns about certain provisions in the agreement.

The primary legal issues before the Commission were whether the agreement met the requirements of the Fair Work Act, specifically whether it complied with the provisions concerning enterprise agreements, including the need for it to be in writing, to be based on the terms and conditions of employment, and to comply with the 'better off overall test'. The employer contested the application on the basis that the agreement failed to meet these requirements.

The Commission examined the terms of the agreement and found that it was in writing and based on the terms and conditions of employment. It also found that the agreement complied with the 'better off overall test', which requires that the agreement must not reduce the overall pay and conditions of employees. The Commission noted that the employer had not provided any evidence to suggest that the agreement would have an adverse impact on the employees' overall pay and conditions. The Commission was satisfied that the agreement was fair and reasonable and therefore approved and registered the agreement under the Fair Work Act.

The Commission made an order approving and registering the GATT Excavations Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The agreement was to be registered from the date of the Commission's decision and would remain in force until the end of the agreed period, unless terminated earlier in accordance with its terms or the Fair Work Act.

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