Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 5893

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2021/7338)

TRINITY DRAINAGE PTY LTD T/As TRINITY DRAINAGE 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, 21 SEPTEMBER 2021

Application for approval of the TRINITY DRAINAGE PTY LTD T/As TRINITY DRAINAGE and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the TRINITY DRAINAGE PTY LTD T/As TRINITY DRAINAGE 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.

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.

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.

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.

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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 September 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission concerned an application for the approval of the TRINITY DRAINAGE PTY LTD T/As TRINITY DRAINAGE and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The applicant was the Construction, Forestry, Maritime, Mining and Energy Union, which sought to have the proposed agreement approved as a safety net agreement under the Fair Work Act 2009. The dispute centred around the terms of the proposed enterprise agreement, which was intended to govern the employment conditions of subcontractors in the earthmoving, excavation, and drainage sectors.

The primary legal issue before the commission was whether the proposed agreement met the statutory requirements for approval as a safety net agreement. Specifically, the commission had to determine if the agreement contained minimum terms that were no less favourable than those prescribed by the Fair Work Act, the National Employment Standards, and the applicable modern awards. The commission also had to consider if the agreement was negotiated in good faith and whether it complied with the procedural requirements set out in the Fair Work Act.

The Fair Work Commission found that the proposed agreement met all the statutory requirements for approval. The commission determined that the agreement contained minimum terms that were no less favourable than the prescribed minimums. The commission also concluded that the agreement was negotiated in good faith and complied with the procedural requirements. The commission was satisfied that the agreement provided appropriate safeguards for employees and recognised the need for flexibility in the subcontracting arrangements within the relevant industries. The commission approved the agreement as a safety net agreement, effective from the date of the decision.

In approving the agreement, the commission made an order that the TRINITY DRAINAGE PTY LTD T/As TRINITY DRAINAGE and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023 be approved as a safety net agreement. The order provided that the agreement would apply to all employees who were or would be employed by Trinity Drainage as subcontractors in the earthmoving, excavation, and drainage sectors. The order also specified that the agreement would be registered with the Fair Work Commission and would be binding on all parties from the date of the decision.

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