Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 1041

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/887)

JAL CIVIL EARTHWORKS PTY LTD AS TRUSTEE FOR J & S LYNCH FAMILY TRUST T/AS JAL CVIL AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS EARTHMOVING, EXCAVATION AND DRAINAGE ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	MELBOURNE, 12 APRIL 2023

Application for approval of the JAL CIVIL EARTHWORKS PTY LTD AS TRUSTEE FOR J & S LYNCH FAMILY TRUST T/As JAL CVIL 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 JAL CIVIL EARTHWORKS PTY LTD AS TRUSTEE FOR J & S LYNCH FAMILY TRUST T/As JAL CVIL 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 19 April 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 matter before the Fair Work Commission was an application for the approval of an enterprise agreement between the JAL Civil Earthworks Pty Ltd as trustee for J & S Lynch Family Trust trading as JAL Civil and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The union sought to have the agreement, which covered subcontractors in earthmoving, excavation, and drainage, recognised as a lawful enterprise agreement. The dispute centred on whether the agreement met the statutory requirements under the Fair Work Act 2009.

The key legal issues addressed by the Commission involved the validity and compliance of the agreement with the legislative framework. The Commission examined whether the agreement had been made in good faith, whether it covered only matters that could be in an enterprise agreement, and if it had been properly certified by the relevant authority. Additionally, the Commission considered whether the agreement provided for a proper balance between the rights and obligations of the parties and if it complied with the procedural requirements for certification.

After a thorough examination of the agreement and the submissions made by both parties, the Commission determined that the agreement met all the statutory requirements for approval. The Commission found that the agreement was made in good faith, covered only matters that could be in an enterprise agreement, and was properly certified. Furthermore, the Commission concluded that the agreement provided a fair balance between the rights and obligations of the parties and complied with the procedural requirements for certification.

The Fair Work Commission approved the JAL Civil Earthworks Pty Ltd as trustee for J & S Lynch Family Trust t/as JAL Civil and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The agreement was deemed to be a lawful enterprise agreement and was to be registered accordingly.

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