Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 2699

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/2741)

SWAIN CIVIL PTY LTD T/AS SWAIN CIVIL 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, 24 AUGUST 2023

Application for approval of the SWAIN CIVIL PTY LTD T/As SWAIN CIVIL 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 SWAIN CIVIL PTY LTD T/As SWAIN CIVIL 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 20 July 2023 and the Agreement was made on 11 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 31 August 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 Fair Work Commission involved an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) to have the SWAIN CIVIL PTY LTD T/As SWAIN CIVIL and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023 approved. The dispute centred on whether the agreement met the requirements of the Fair Work Act 2009, particularly with regard to the negotiation and content of the agreement. The Commission was tasked with determining if the agreement was genuinely negotiated, covered the appropriate bargaining unit, and included essential terms and conditions of employment.

The legal issues before the Commission included whether the agreement was genuinely negotiated between the parties, whether it was appropriate for the bargaining unit, and if it contained the essential terms and conditions of employment as required by the Fair Work Act. Additionally, the Commission had to consider whether the agreement was consistent with the provisions of the Act, including its adherence to the National Employment Standards and any applicable awards.

The Fair Work Commission found that the agreement had been genuinely negotiated between the parties and was appropriate for the bargaining unit. The Commission noted that the agreement covered a specific group of employees within the earthmoving, excavation, and drainage sector and that the terms and conditions contained within it were consistent with the requirements of the Act. The Commission was satisfied that the agreement met the necessary criteria for approval, including its compliance with the National Employment Standards and relevant awards. As a result, the Commission approved the agreement, confirming its validity and applicability to the specified bargaining unit.

The Fair Work Commission approved the SWAIN CIVIL PTY LTD T/As SWAIN CIVIL and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The decision affirmed the agreement's compliance with the Fair Work Act, recognising it as a genuine collective bargaining agreement that appropriately covered the specified bargaining unit and contained the essential terms and conditions of employment. This approval allows the agreement to be enforced and provides a framework for the employment conditions of the employees within the specified sector.

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