DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2020/4042)

VIC 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, 14 JANUARY 2021

Application for approval of the VIC CIVIL 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 VIC 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.

[2] The title of the Agreement in the Notice of Employee Representational Rights was different to the title clause in the proposed Agreement. However, I am satisfied that in all of the circumstances and having regard to the Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others 1, this constitutes a minor procedural or technical error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

[3] 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.

[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 21 January 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 318.

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application for the approval of the VIC Civil Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The dispute centred on the terms and conditions outlined in the proposed agreement, which was intended to govern the employment of subcontractors in the earthmoving, excavation, and drainage sectors within Victoria. The application was brought forth by the union, which sought to ensure that the agreement met the necessary standards for approval under the Fair Work Act 2009.

The primary legal issues addressed by the Commission involved whether the proposed agreement contained terms that were contrary to the public interest, unfair, or did not meet the requirements of the Fair Work Act. Specifically, the Commission examined whether the agreement provided adequate protections for employees, ensured a fair and reasonable workplace, and complied with the provisions set out in the Act. The Commission also needed to assess whether the agreement was negotiated in good faith and whether it provided for the proper operation of the enterprise.

In deliberating on the application, the Commission considered the submissions made by both parties, the implications of the proposed terms on the employees, and the broader impact on the industry. The Commission concluded that the agreement did not contain any terms that were contrary to the public interest or unfair. It found that the agreement provided adequate protections for employees, ensured a fair and reasonable workplace, and complied with the requirements of the Fair Work Act. The Commission also determined that the agreement had been negotiated in good faith and was in the best interest of the employees and the industry.

As a result, the Commission approved the VIC Civil Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023, effective from the date of the decision. This approval allows the agreement to be registered and enforced under the Fair Work Act, providing a framework for the employment of subcontractors in the specified sectors within Victoria for the duration of the agreement.

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