Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 1222

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/1135)

MELBOURNE ELITE CIVIL PTY LTD T/AS MELBOURNE ELITE CIVIL 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, 2 MAY 2023

Application for approval of the MELBOURNE ELITE CIVIL PTY LTD T/As MELBOURNE ELITE CIVIL 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 MELBOURNE ELITE CIVIL PTY LTD T/As MELBOURNE ELITE CIVIL 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 9 May 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 matter of the Fair Work Commission, Melbourne Elite Civil Pty Ltd t/as Melbourne Elite Civil and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023, the parties were seeking approval of an enterprise agreement. The agreement was proposed to cover workers within the subcontracting sector, specifically those involved in earthmoving, excavation, and drainage activities. The dispute was brought before the Fair Work Commission, the body responsible for overseeing and approving enterprise agreements under Australian industrial relations law.

The legal issues before the Commission centred on whether the proposed agreement complied with the requirements set out in the Fair Work Act 2009. This included determining whether the agreement had been made in accordance with the procedural requirements for enterprise agreements and whether it contained the necessary terms and conditions to be considered a "better off overall" agreement. The Commission also needed to ensure that the agreement did not discriminate against any group of employees or contravene any other provisions of the Act.

After examining the agreement and the evidence presented by both parties, the Commission concluded that the proposed enterprise agreement met the necessary legal requirements. The agreement was found to have been made in accordance with the procedural requirements, contained the necessary terms and conditions, and did not discriminate against any group of employees. Furthermore, the Commission was satisfied that the agreement provided a better off overall outcome for the employees covered by it. Consequently, the Fair Work Commission approved the Melbourne Elite Civil Pty Ltd t/as Melbourne Elite Civil and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023.

As a result of the approval, the agreement will now be binding on all employees covered by it, as well as the employer. The terms and conditions set out in the agreement will govern the employment relationship between the employees and the employer for the duration of the agreement, which is from 2020 to 2023. Both parties are now bound by the agreement and must abide by its terms and conditions. The approval of this enterprise agreement is an important step in providing certainty and stability to the subcontracting sector, as well as ensuring that employees receive fair and reasonable terms and conditions of employment.

Construction, Forestry, Maritime, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established