Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 2049

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/2111)

GEELONG EARTHMOVING AND 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
COMMISSIONER LEE	MELBOURNE, 6 JULY 2023

Application for approval of the GEELONG EARTHMOVING AND 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 GEELONG EARTHMOVING AND 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.

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 13 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 case involved an application for the approval of the Geelong Earthmoving and Construction Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The dispute was lodged in the Fair Work Commission, which is the industrial tribunal with jurisdiction over enterprise agreements under the Fair Work Act 2009 (Cth). The Commission was required to determine whether the agreement complied with the legislative requirements and whether its approval was in the public interest.

The legal issues before the Commission included whether the agreement was genuinely an enterprise agreement, whether it was made in accordance with the procedures prescribed by the Fair Work Act, and whether it met the public interest test. The Commission needed to assess whether the agreement was made freely and without any form of coercion, and whether it provided for fair terms and conditions of employment.

The Commission found that the agreement was genuinely an enterprise agreement, made in accordance with the statutory procedures and met the public interest test. The agreement was determined to be free from any form of coercion, and it was concluded that it provided for fair terms and conditions of employment. The Commission approved the agreement, recognising its importance in providing certainty and stability in the subcontracting arrangements within the earthmoving, excavation, and drainage industries. The final orders of the Commission included the approval of the enterprise agreement, which would be registered with the Fair Work Ombudsman.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established