Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 3101

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/3228)

ADAMSON EARTHMOVERS SERVICES 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, 25 SEPTEMBER 2023

Application for approval of the ADAMSON EARTHMOVERS SERVICES PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the ADAMSON EARTHMOVERS SERVICES 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.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 14 August 2023 and the Agreement was made on 7 September 2023. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

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.

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.

The Construction, Forestry, 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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 October 2023. The nominal expiry date of the Agreement is 31 December 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Adamson Earthmovers Services Pty Ltd. The dispute was regarding the approval of a subcontractor enterprise agreement between the CFMEU and Adamson Earthmovers Services Pty Ltd for the period 2020-2023. The matter was heard by the Fair Work Commission.

The legal issues before the Commission were whether the agreement complied with the relevant provisions of the Fair Work Act 2009 and whether it met the criteria for approval under the Fair Work Regulations 2009. Specifically, the Commission had to determine if the agreement contained the necessary minimum entitlements, if it was fairly negotiated, and if it was in the best interests of the employees covered by the agreement.

The Commission found that the agreement was compliant with the statutory requirements and was fairly negotiated. It concluded that the agreement contained all the necessary minimum entitlements and was in the best interests of the employees. The Commission approved the agreement, highlighting the importance of such agreements in providing fair and just outcomes for both employers and employees. The approval was based on the evidence presented and the findings of the Commission that the agreement met all the necessary criteria for approval.

No further orders were made by the Commission. The agreement was approved as presented, and the parties were directed to abide by its terms. The decision provided clarity for both the CFMEU and Adamson Earthmovers Services Pty Ltd regarding the terms of their agreement and ensured that the employees were covered by a fair and compliant enterprise agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established