Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 5665

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/6944)

MICK MATTO 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
COMMISSIONER LEE	MELBOURNE, 14 SEPTEMBER 2021

Application for approval of the MICK MATTO 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 MICK MATTO 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 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 21 September 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

The application before the Fair Work Commission was for the approval of the Mick Matto Excavations Pty. Ltd. and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The applicant, Mick Matto Excavations Pty. Ltd., sought to have the agreement, which sets out the terms and conditions of employment for its employees, recognised as a protected action agreement under the Fair Work Act 2009. The dispute arose when the applicant sought to implement the terms of the agreement, but the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) contested its validity and sought to have it disallowed.

The central legal issue before the Commission was whether the agreement met the requirements of section 233 of the Fair Work Act, which governs the approval of protected action agreements. This involved examining whether the agreement had been made in good faith, whether it provided for the fair and equitable treatment of employees, and whether it complied with the relevant minimum standards set out in the National Employment Standards and the Fair Work Act. Additionally, the Commission had to consider whether the agreement had been made through appropriate bargaining processes and whether it contained provisions that were not reasonably necessary for the protection of employees.

In determining the validity of the agreement, the Commission considered the evidence and submissions from both parties. The Commission found that the agreement had been made in good faith and provided for the fair and equitable treatment of employees. It was satisfied that the agreement complied with the minimum standards and that the bargaining processes were appropriate. The Commission also concluded that all provisions of the agreement were reasonably necessary for the protection of employees. Therefore, the Commission approved the agreement as a protected action agreement under the Fair Work Act.

As a result of the Commission's decision, the Mick Matto Excavations Pty. Ltd. and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023 was approved as a protected action agreement. The agreement now sets out the terms and conditions of employment for the employees of Mick Matto Excavations Pty. Ltd. and is protected from certain unfair dismissal claims under 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