Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 3065

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/3164)

CONNOLLY CIVIL 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, 21 SEPTEMBER 2023

Application for approval of the CONNOLLY CIVIL 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 CONNOLLY CIVIL 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 June 2023 and the Agreement was made on 1 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 28 September 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 matter before the court involved an application by Connolly Civil Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) for the approval of a subcontractor's enterprise agreement. The dispute was heard and determined by the Fair Work Commission, an industrial relations tribunal in Australia.

The primary legal issue before the tribunal was whether the proposed enterprise agreement met the requirements of the Fair Work Act 2009. Specifically, the tribunal needed to determine if the agreement was made in accordance with the relevant provisions of the Act, including whether it covered the correct bargaining unit and if it contained the necessary minimum terms and conditions. The tribunal also had to consider if the agreement was fair and reasonable, as required by the Act.

In delivering its decision, the tribunal examined the process by which the agreement was negotiated and the content of the agreement itself. It found that the agreement was made in accordance with the Fair Work Act and that the correct bargaining unit was specified. The tribunal further determined that the agreement contained the necessary minimum terms and conditions and was fair and reasonable. Consequently, the tribunal approved the application and certified the enterprise agreement.

The Fair Work Commission's final orders included the approval and certification of the Connolly Civil Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. This decision ensures that the terms and conditions outlined in the agreement are legally binding on the parties involved.

Construction, Forestry, Maritime, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established