Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 2636

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/2679)

D-TECH LOCATING SERVICES PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS MARKING AND SETTING OUT ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 21 AUGUST 2023

Application for approval of the D-TECH LOCATING SERVICES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Marking and Setting Out Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the D-TECH LOCATING SERVICES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Marking and Setting Out 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 5 July 2023 and the Agreement was made on 27 July 2023. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

[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.

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. 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 parties in this matter were D-TECH Locating Services Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) (Victorian Construction and General Division). The dispute was regarding the application for approval of the Subcontractors Marking and Setting Out Enterprise Agreement 2020-2023 under the Fair Work Act 2009 (Cth). The application was heard in the Fair Work Commission.

The central legal issue that the Commission needed to determine was whether the proposed enterprise agreement was in the public interest and if it complied with the provisions of the Fair Work Act. Specifically, the Commission had to assess if the agreement met the requirements for good faith bargaining and if it adhered to the standards set by the Act for enterprise agreements. Additionally, the Commission examined whether the agreement adequately covered the terms and conditions of employment, including wages, hours, and other employment-related matters.

In reaching its decision, the Commission thoroughly reviewed the submissions from both parties and the evidence presented. The Commission found that the agreement was the result of genuine negotiations and that it met the statutory requirements for good faith bargaining. It also found that the agreement was consistent with the provisions of the Fair Work Act and adequately covered the necessary terms and conditions of employment. Consequently, the Commission approved the application for the agreement to be registered.

The Commission's final order was that the Subcontractors Marking and Setting Out Enterprise Agreement 2020-2023 between D-TECH Locating Services Pty Ltd and the CFMEU (Victorian Construction and General Division) be approved and registered under the Fair Work Act 2009 (Cth). This decision ensures that the agreement is legally binding and enforceable between the parties involved.

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