Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 988

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/872)

NELLIE HILL PROJECTS PTY LTD T/AS DRD CONCRETE & EXCAVATIONS (AUS) 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, 11 APRIL 2023

Application for approval of the NELLIE HILL PROJECTS PTY LTD T/As DRD CONCRETE & EXCAVATIONS (AUS) 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 NELLIE HILL PROJECTS PTY LTD T/As DRD CONCRETE & EXCAVATIONS (AUS) 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 18 April 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

The case involved an application for the approval of an enterprise agreement between the Nellie Hill Projects Pty Ltd, trading as DRD Concrete & Excavations (Aus), and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The matter was heard in the Fair Work Commission, an independent statutory tribunal in Australia. The union sought approval of the agreement, while the employer opposed it on various grounds.

The primary legal issue before the commission was whether the proposed agreement met the criteria for approval under the Fair Work Act 2009. This involved assessing whether the agreement had been made in the course of genuine bargaining between the parties, if it contained terms and conditions of employment that were fair and reasonable, and if it complied with the procedural requirements set out in the Act. The employer argued that certain provisions of the agreement were unfair and not the product of genuine bargaining.

The commission determined that the agreement had been made in good faith and represented a genuine outcome of the bargaining process. It found that the terms and conditions contained within the agreement were fair and reasonable, taking into account the nature of the industry and the bargaining power of the parties. The commission also held that the agreement complied with the procedural requirements of the Act, including the requirement for notice of the application to be given to certain persons. As a result, the application for approval was granted, and the enterprise agreement was registered.

The final orders of the commission included the registration of the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023, effective from 1 March 2020. The agreement was to apply to all employees of Nellie Hill Projects Pty Ltd, trading as DRD Concrete & Excavations (Aus), who were members of the union and engaged in the specified enterprise bargaining unit. The employer was directed to take all necessary steps to give effect to the terms of the agreement, and the union was directed to take all necessary steps to ensure its proper implementation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established