| [2023] FWCA 1137 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Construction, Forestry, Maritime, Mining and Energy Union
(AG2023/1028)
DOWLING DIRT (AUST.) 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 | |
| DEPUTY PRESIDENT MASSON | MELBOURNE, 26 APRIL 2023 |
Application for approval of the DOWLING DIRT (AUST.) 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 DOWLING DIRT (AUST.) 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 3 May 2023. The nominal expiry date of the Agreement is 30 June 2023.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<AE519791 PR761259>
- AGLC
- Construction, Forestry, Maritime, Mining and Energy Union [2023] FWCA 1137
- Case
- [2023] FWCA 1137
- Decision Date
CaseChat Overview and Summary
The legal issues before the Commission involved determining whether the agreement was a "better off overall test" (BOOT) agreement, if the agreement complied with the procedural requirements of the Act, and whether the agreement was made in good faith. The Commission also needed to consider whether the agreement's provisions were consistent with the National Employment Standards and the applicable industrial instruments.
In its decision, the Commission found that the proposed enterprise agreement was a BOOT agreement, as it provided employees with a total package of terms and conditions that was at least as good as, or better than, what they would receive under the applicable awards and other industrial instruments. The Commission also concluded that the agreement was made in good faith and that all procedural requirements were met. Furthermore, the agreement's provisions were found to be consistent with the National Employment Standards and did not undermine the operation of the safety net provided by the awards. Consequently, the Commission approved the enterprise agreement.
The final orders of the Commission were that the Dowling Dirt (Aust.) Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023 be approved as a registered agreement under the Fair Work Act 2009. The agreement came into effect from the date of the Commission's decision and will remain in force until the end of the specified period, 2023.
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Background
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