DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/6743)

CAMPBELL EARTHMOVING & 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, 27 AUGUST 2021

Application for approval of the CAMPBELL EARTHMOVING & 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 CAMPBELL EARTHMOVING & 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 3 September 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the court involved an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) to approve a proposed enterprise agreement between the CFMEU and Campbell Earthmoving & Excavations Pty Ltd. The dispute centred around the terms of the proposed Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The case was heard in the Fair Work Commission, an Australian workplace relations tribunal.

The legal issues that the court needed to address included whether the proposed agreement met the requirements of the Fair Work Act 2009, including the provisions relating to "better off overall test" (BOOT) and "no disadvantage test" (NDT). The court also needed to consider whether the agreement was made in good faith, whether it provided for proper and timely consultation, and whether it contained appropriate dispute resolution mechanisms.

The Fair Work Commission determined that the proposed agreement met all the necessary requirements under the Fair Work Act 2009. The agreement was found to satisfy the BOOT and NDT, as well as providing for proper and timely consultation between the parties. The court also found that the agreement was made in good faith and contained appropriate dispute resolution mechanisms. As a result, the Commission approved the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023.

The Fair Work Commission approved the proposed Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023, finding it to be compliant with the requirements of the Fair Work Act 2009.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established