Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 2403

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/2482)

CSA GROUP PTY LTD T/AS CSA SPECIALISED SERVICES AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) NON-DESTRUCTIVE DIGGER EARTHMOVING, EXCAVATION AND DRAINAGE ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT BELL	MELBOURNE, 2 AUGUST 2023

Application for approval of the CSA GROUP PTY LTD T/As CSA SPECIALISED SERVICES and the CFMEU (Victorian Construction and General Division) Non-Destructive Digger Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023.

An application has been made for approval of an enterprise agreement known as the CSA GROUP PTY LTD T/As CSA SPECIALISED SERVICES and the CFMEU (Victorian Construction and General Division) Non-Destructive Digger 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) by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 19 June 2023 and the Agreement was made on 18 July 2023. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.[1]

Having regard to the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer. However, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

The CFMMEU, 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 was approved on 2 August 2023 and, in accordance with s.54 of the Act, will operate from 9 August 2023. The nominal expiry date of the Agreement is 31 December 2023.

DEPUTY PRESIDENT

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements which are not applicable to the present application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application for the approval of a particular enterprise agreement between the CSA Group Pty Ltd, trading as CSA Specialised Services, and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The dispute centred around the validity and fairness of the Non-Destructive Digger Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023, which had been negotiated between the employer and the union. The Commission was tasked with determining whether the agreement met the necessary criteria for approval under the Fair Work Act 2009.

The central legal issues that the Commission had to address included whether the agreement had been made in good faith and whether it contained the minimum terms and conditions as prescribed by the Fair Work Act. Furthermore, the Commission examined if the agreement had been fairly negotiated and if it adhered to the procedural fairness standards, including whether the union had adequately represented its members. Additionally, the Commission considered whether the agreement provided for proper dispute resolution mechanisms.

In its reasoning, the Commission noted that the agreement had been negotiated in good faith and contained all the minimum terms and conditions required by the Act. The Commission found that the union had appropriately represented its members and that the agreement had been fairly negotiated. The Commission also concluded that the agreement provided adequate and accessible dispute resolution processes. Based on these findings, the Commission approved the enterprise agreement, finding it to be fair and meeting the necessary criteria under the Fair Work Act.

The final orders of the Commission included the approval of the Non-Destructive Digger Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023, effective from the date of the decision. The agreement was to apply to all employees covered by the agreement, and both parties were directed to take all necessary steps to implement the approved terms and conditions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established