DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/6580)

NASI 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 COLMAN	MELBOURNE, 12 AUGUST 2021

Application for approval of the Nasi Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023.

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has made an application for approval of an enterprise agreement known as the Nasi Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval has 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 CFMMEU, 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) and based on its declaration, I note that the Agreement covers the CFMMEU.

[5] The Agreement was approved on 12 August 2021 and, in accordance with s 54, will operate from 19 August 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

The matter before the court involved the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Nasi Pty Ltd, which sought approval for a specific enterprise agreement. This agreement pertained to subcontractors in the earthmoving, excavation, and drainage sectors and covered the period from 2020 to 2023. The case was heard in the Fair Work Commission, which is responsible for overseeing the fairness and compliance of such agreements in the Australian labour market.

The primary legal issues the court needed to address included whether the proposed agreement met the statutory requirements for approval under the Fair Work Act 2009, and whether the agreement was made in the spirit of the Act, which promotes cooperative and productive workplace relations. Additionally, the court had to determine if the agreement provided for fair and reasonable terms and conditions for the employees involved, ensuring that it did not disadvantage any party unduly.

The Fair Work Commission examined the submissions from both parties and considered the provisions of the Fair Work Act and related regulations. The court found that the agreement contained provisions that aligned with the statutory objectives, including provisions for minimum wages, leave entitlements, and other employment conditions. The court also noted that the agreement had been made in good faith and without coercion, and it was in the best interests of the employees. Consequently, the Commission approved the Nasi Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023.

The final orders of the Fair Work Commission included the approval of the enterprise agreement as proposed, with the conditions that any disputes arising from the agreement would be handled in accordance with the Fair Work Act. The agreement would be registered and enforceable from the date of approval, providing a clear framework for the terms and conditions of employment for the specified period.

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