Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 1187

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/1075)

BOYLAN CIVIL 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, 27 APRIL 2023

Application for approval of the BOYLAN CIVIL 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 BOYLAN CIVIL 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 4 May 2023. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Boylan Civil and Construction Pty Ltd applied to the Fair Work Commission for the approval of their Enterprise Agreement. The agreement, which covers subcontractors in earthmoving, excavation, and drainage, was proposed for the period 2020-2023. The CFMEU, representing the employees, and Boylan Civil and Construction Pty Ltd, the employer, submitted the agreement for review to ensure compliance with the Fair Work Act 2009. The central issue before the Fair Work Commission was to determine whether the agreement met the legal requirements under the Act and could be approved for implementation.

In examining the application, the Commission considered various factors, including the agreement's provisions on wages, conditions, dispute resolution mechanisms, and other terms and conditions of employment. The Commission assessed whether the agreement provided fair and reasonable terms and conditions, including minimum rates of pay and leave entitlements, and whether it adhered to the principles of good faith bargaining and procedural fairness. The Commission also evaluated the extent to which the agreement complied with the statutory minimum standards and the process through which it was negotiated.

After careful consideration of the evidence and arguments presented by the parties, the Fair Work Commission found that the Enterprise Agreement was compliant with the Fair Work Act and met the necessary criteria for approval. The agreement provided fair and reasonable terms and conditions for the employees, including appropriate rates of pay and leave entitlements. The Commission determined that the agreement had been negotiated in good faith and that the process followed was procedurally fair. As a result, the Fair Work Commission approved the Boylan Civil and Construction Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023.

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