Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 2953

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/3084)

SOIL RECYCLING CO PTY LTD T/AS WHITE LABEL LANDSCAPE SERVICES AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS LANDSCAPE CONSTRUCTION ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 15 SEPTEMBER 2023

Application for approval of the Soil Recycling Co Pty Ltd T/As White Label Landscape Services and the CFMEU (Victorian Construction and General Division) Subcontractors Landscape Construction Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the SOIL RECYCLING CO PTY LTD T/AS WHITE LABEL LANDSCAPE SERVICES AND THE (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.

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, 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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 September 2023. The nominal expiry date of the Agreement is 31 December 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicants in this case were the Soil Recycling Co Pty Ltd trading as White Label Landscape Services and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). They sought approval of the Subcontractors Landscape Construction Enterprise Agreement 2020-2023 from the Fair Work Commission. The dispute centred on the terms of the proposed agreement, which had been negotiated between the parties. The case was heard in the Fair Work Commission, an Australian federal statutory body with jurisdiction over workplace relations matters.

The legal issues before the Commission were whether the terms of the proposed agreement complied with the relevant provisions of the Fair Work Act 2009. The Commission had to consider whether the agreement met the criteria for being a "protected action" under the Act, including whether it was a "good faith" agreement and whether it had been negotiated in good faith. The Commission also had to consider whether the agreement met the requirements for being a "modern award" under the Act, including whether it provided for a fair and efficient workplace.

The Commission found that the agreement was a good faith agreement that had been negotiated in good faith. The Commission also found that the agreement met the requirements for being a modern award under the Act. The Commission noted that the agreement provided for a fair and efficient workplace, and that it met the requirements for being a "single enterprise agreement" under the Act. The Commission approved the agreement, subject to certain modifications to ensure compliance with the Act.

The final orders of the Commission were that the Subcontractors Landscape Construction Enterprise Agreement 2020-2023 be approved, subject to certain modifications. The modifications related to the calculation of penalty rates and the definition of "landscape construction work". The Commission also ordered that the agreement be registered with the Fair Work Commission, and that it be published on the Commission's website. The decision is a useful guide for employers and employees in the landscape construction industry, as it provides clarity on the terms that can be included in a modern award agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established