Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 2641

FAIR WORK COMMISSION

DECISION

Unknown

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/2681)

BRYCO CIVIL CONSTRUCTION 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 AUGUST 2023

Application for approval of the BRYCO CIVIL CONSTRUCTION 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 BRYCO CIVIL CONSTRUCTION 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 8 July 2023 and the Agreement was made on 31 July 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.

Th 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 28 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 for approval of a proposed enterprise agreement between Bryco Civil Construction Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The application was made under section 231 of the Fair Work Act 2009, which requires the Commission to approve an agreement if it meets certain criteria, including that it is fairly negotiated and provides for appropriate terms and conditions of employment. The CFMEU sought approval of the agreement on behalf of its members who are employed by Bryco as subcontractors in the earthmoving, excavation, and drainage industries.

The legal issues before the Commission centred on whether the agreement was fairly negotiated and whether it contained appropriate terms and conditions of employment. The Commission considered submissions from both parties and evidence presented during the hearing. The employer argued that the agreement contained terms that were not fairly negotiated, including provisions relating to pay rates and conditions for casual employees. The union argued that the agreement was fairly negotiated and provided appropriate terms and conditions of employment for its members.

After considering the evidence and submissions, the Commission found that the agreement was fairly negotiated and contained appropriate terms and conditions of employment. The Commission noted that the union had made a good faith effort to negotiate the agreement and that the employer had not demonstrated that any of the provisions were unfair. The Commission also found that the agreement provided for appropriate pay rates and conditions for casual employees, taking into account the nature of the work and the need for flexibility in the industry. Accordingly, the Commission approved the agreement under section 231 of the Fair Work Act 2009.

The Commission's decision provides guidance to employers and unions on the requirements for approving enterprise agreements and the factors that the Commission will consider in making a decision. The decision also highlights the importance of good faith negotiations and the need for enterprise agreements to provide appropriate terms and conditions of employment for employees. The approval of the agreement will provide certainty and stability to employees and employers in the earthmoving, excavation, and drainage industries.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established