DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5381)

ALL CIVIL AUSTRALIA 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, 9 JUNE 2021

Application for approval of the ALL CIVIL AUSTRALIA 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 ALL CIVIL AUSTRALIA 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 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 16 June 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved an application for the approval of the ALL Civil Australia Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The application was brought under the Fair Work Act 2009. The respondents contested the application, asserting that the agreement did not meet the criteria for approval as stipulated by the Act. The central legal issues revolved around whether the agreement complied with the statutory requirements for enterprise agreements, including the presence of a genuine bargain, and if the agreement appropriately covered the necessary terms and conditions.

The court meticulously examined the provisions of the agreement, considering whether it represented a genuine bargain between the parties and whether it contained all the prescribed terms as mandated by the Fair Work Act. The court also assessed the agreement's alignment with the principles of good faith bargaining and whether it satisfied the requirements for fair and reasonable terms. In reaching its decision, the court weighed the evidence and submissions presented by both parties, focusing on the compliance of the agreement with the legislative framework.

After thorough analysis, the court determined that the agreement did not meet the statutory criteria for approval. It found that certain provisions did not reflect a genuine bargain and were not fair and reasonable. Additionally, the court identified that the agreement failed to include all the prescribed terms required by the Fair Work Act. Consequently, the application for approval was dismissed. The court's decision underscored the importance of strict compliance with the legislative provisions governing enterprise agreements.

The final orders of the court included a dismissal of the application for approval of the ALL Civil Australia Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The court's decision emphasised the necessity for enterprise agreements to meet all statutory requirements to ensure they are fair and reflect genuine bargaining between the parties.

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