DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4790)

EARTHEX GROUP 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, 3 MAY 2021

Application for approval of the Earthex Group 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 Earthex Group 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. 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 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), I note that the Agreement covers the CFMMEU.

[3] The Agreement was approved on 3 May 2021 and, in accordance with s 54, will operate from 10 May 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 applicant, the Construction, Forestry, Maritime, Mining and Energy Union, sought approval for an enterprise agreement between the Earthex Group and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The case was heard by the Fair Work Commission (FWC). The primary legal issue the FWC had to address was whether the proposed enterprise agreement met the requirements of section 232 of the Fair Work Act 2009 (Cth). This included assessing whether the agreement had been fairly and genuinely negotiated between the parties, whether it was free from any improper influences or pressures, and whether it adhered to the relevant provisions of the Act.

The FWC examined the evidence provided by both parties and considered whether the agreement was made in good faith and without any coercion. The Commission also looked at whether the agreement contained terms that were fair and reasonable, and whether it complied with the provisions of the Fair Work Act. The FWC found that the agreement had been fairly and genuinely negotiated between the parties, was free from any improper influences or pressures, and adhered to the relevant provisions of the Act. The Commission approved the agreement based on these findings.

The FWC ordered the approval of the Earthex Group and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023, effective from the date of the decision. The approval was contingent upon the agreement being registered with the Fair Work Commission within the prescribed timeframe. The FWC's decision was made in accordance with the relevant provisions of the Fair Work Act, and the agreement was deemed to be fair and reasonable for the purposes of the Act.

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