Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 2848

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/2952)

KELLEX 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, 7 SEPTEMBER 2023

Application for approval of the KELLEX PTY LTD and the CFMEU (Victoria 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 KELLEX PTY LTD and the CFMEU (Victoria 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 1 August 2023 and the Agreement was made on 23 August 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, 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 14 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 case before the court involved an application for the approval of a new enterprise agreement between Kellex Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The application was heard in the Fair Work Commission, Australia's workplace relations tribunal.

The primary legal issues addressed by the court were whether the proposed agreement met the statutory requirements for approval under the Fair Work Act 2009, and whether it adhered to the principles of good faith bargaining and the provision of procedural fairness to the parties involved. The court had to assess if the agreement was fair and reasonable, and if the process leading to its creation complied with the legal standards expected in enterprise bargaining.

In its decision, the court found that the application met the necessary criteria for approval. The agreement was deemed to be fair and reasonable, taking into account the economic and employment circumstances of the parties. The court noted that the process leading to the agreement had been conducted in good faith, with appropriate procedural fairness observed. The evidence presented indicated that the agreement was not detrimental to the employees or the employer, and therefore satisfied the requirements for approval under the Fair Work Act.

The court approved the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023, effective from the date of the decision. The terms of the agreement will now apply to the employees of Kellex Pty Ltd, as well as any other employees covered by the agreement.

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