Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 2163

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/2200)

ACCOLADE PROJECTS 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
COMMISSIONER LEE	MELBOURNE, 13 JULY 2023

Application for approval of the ACCOLADE PROJECTS 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 ACCOLADE PROJECTS 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.

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 20 July 2023. The nominal expiry date of the Agreement is 31 December 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Accolade Projects Pty Ltd, sought approval of an enterprise agreement with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), specifically the Victorian Construction and General Division Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The case was heard by the Fair Work Commission. The primary dispute centred on whether the proposed enterprise agreement complied with the relevant legislative requirements, particularly under the Fair Work Act 2009. The central legal issues were whether the agreement met the criteria for being a "genuine" enterprise agreement and whether it complied with the provisions of the Act, including those concerning minimum wages and other employee entitlements.

The Commission examined the evidence presented and considered the arguments from both parties. It assessed the agreement's compliance with the procedural requirements for genuineness, including the involvement of genuine bargaining and the absence of any improper influence. The Commission found that the agreement had been negotiated in good faith and that all procedural requirements had been satisfied. Furthermore, the Commission determined that the agreement did not contravene any provisions of the Fair Work Act and provided appropriate protections for the employees involved. As a result, the Commission approved the enterprise agreement, confirming its compliance with the necessary legal standards.

The Fair Work Commission approved the proposed enterprise agreement, affirming that it met all the legal requirements set out in the Fair Work Act. The Commission found no procedural irregularities and confirmed that the agreement was genuinely negotiated and did not unfairly disadvantage any party. The approval ensures that the terms and conditions outlined in the agreement will govern the employment relationship between Accolade Projects Pty Ltd and the CFMEU for the specified period.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established