Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 1738

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/1765)

SHINE EXCAVATIONS PTY LTD AS TRUSTEE FOR SHINE EXCAVATIONS TRUST AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS EARTHMOVING, EXCAVATION AND DRAINAGE ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 16 JUNE 2023

Application for approval of the SHINE EXCAVATIONS PTY LTD AS TRUSTEE FOR SHINE EXCAVATIONS TRUST 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 SHINE EXCAVATIONS PTY LTD AS TRUSTEE FOR SHINE EXCAVATIONS TRUST 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 23 June 2023. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Court of Australia, an application was made by SHINE EXCAVATIONS PTY LTD AS TRUSTEE FOR SHINE EXCAVATIONS TRUST and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) to have their Enterprise Agreement approved. The agreement in question pertains to subcontractors in the earthmoving, excavation, and drainage sectors and covers the period from 2020 to 2023. The legal dispute hinged on whether the agreement met the requirements under the Fair Work Act 2009 for an enterprise agreement to be certified and approved.

The court was required to decide whether the Enterprise Agreement complied with the legal standards set forth in the Fair Work Act 2009. This involved scrutinising the procedural fairness of the agreement's development, including the extent of bargaining, consultation, and the presence of any coercion. Furthermore, the court needed to examine if the agreement covered the necessary minimum terms and conditions as mandated by the Fair Work Act 2009 and whether it was in the best interests of the employees it was intended to cover.

The Federal Court examined the process through which the agreement was formed and determined that the necessary procedural fairness had been observed. The court found that the agreement was developed through genuine and meaningful bargaining and consultation processes. Additionally, the court confirmed that the agreement included all the required minimum terms and conditions and was in the best interests of the employees it covered. Based on these findings, the court approved the agreement.

The court's decision was that the Enterprise Agreement was to be approved, and it was to be registered under the Fair Work Act 2009. This decision allowed the agreement to come into effect, providing a legal framework for the employment conditions of subcontractors in the earthmoving, excavation, and drainage sectors in Victoria 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