Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 1855

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/1911)

METROENVIRO MAINTENANCE PTY LTD AS TRUSTEE FOR METROENVIRO MAINTENANCE TRUST T/AS ELDARIN SERVICES METRO AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS EARTHMOVING, EXCAVATION AND DRAINAGE ENTERPRISE AGREEMENT 2020-2023

Water, sewerage and drainage services
COMMISSIONER LEE	MELBOURNE, 26 JUNE 2023

Application for approval of the METROENVIRO MAINTENANCE PTY LTD AS TRUSTEE FOR METROENVIRO MAINTENANCE TRUST T/AS ELDARIN SERVICES METRO 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 METROENVIRO MAINTENANCE PTY LTD AS TRUSTEE FOR METROENVIRO MAINTENANCE TRUST T/AS ELDARIN SERVICES METRO 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 3 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

In the Federal Court of Australia, the matter of an application for the approval of a Subcontractors Enterprise Agreement between MetroEnviro Maintenance Pty Ltd as Trustee for MetroEnviro Maintenance Trust, trading as Eldarin Services Metro, and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) was heard. The agreement in question is the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The court was tasked with determining whether the proposed agreement met the necessary legal standards and could be approved under the Fair Work Act 2009.

The primary legal issues before the court involved verifying that the agreement was genuinely negotiated, that it adhered to the Fair Work Act's provisions regarding enterprise agreements, and that it contained no unlawful content. This included ensuring that the agreement was free from any terms that might undermine the rights of employees, such as excessively low pay rates or unreasonable conditions. Additionally, the court needed to assess whether the agreement had been negotiated in good faith and if the necessary procedural requirements were satisfied.

The court found that the agreement had been genuinely negotiated and contained no unlawful provisions. It concluded that the agreement complied with the requirements of the Fair Work Act and was free from any terms that might undermine employee rights. The court also determined that the necessary procedural requirements had been met, including that proper notice had been given and that the agreement had been subject to a sufficient period of consultation. The court was satisfied that the agreement was beneficial for both parties and would promote fair and equitable working conditions.

Consequently, the court approved the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023 between MetroEnviro Maintenance Pty Ltd as Trustee for MetroEnviro Maintenance Trust, trading as Eldarin Services Metro, and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The approval signifies that the agreement is now legally binding and enforceable under the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established