DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5667)

CIVIWORKS 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, 30 JUNE 2021

Application for approval of the CIVIWORKS 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 CIVIWORKS 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 7 July 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 application before the Fair Work Commission was brought by CIVIWORKS PTY LTD and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) seeking approval of their Enterprise Agreement. The dispute arose over the terms and conditions outlined in the proposed agreement, which the applicant parties sought to have recognised and enforced in the context of their employment relationship.

The legal issues before the Commission included whether the agreement met the statutory requirements under the Fair Work Act 2009, particularly in terms of its coverage, bargaining process, and the fairness of its provisions. The Commission had to determine whether the agreement was genuinely negotiated, contained essential matters as defined by the Act, and did not adversely affect employees' minimum entitlements.

In its reasoning, the Commission examined the bargaining process and concluded that the agreement was indeed genuinely negotiated between the parties. It found that the agreement covered the necessary aspects as required by the Act, including minimum rates of pay and classification of employees. The Commission also assessed the fairness of the provisions and determined that they did not unjustifiably disadvantage employees. Consequently, the application for approval was granted, and the agreement was recognised as a registered agreement.

The final orders included the approval and registration of the CIVIWORKS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The agreement was to be binding on all employees covered by it, effective from the date of the Commission's decision.

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