Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 738

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/503)

HRV EARTHMOVING 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, 15 MARCH 2023

Application for approval of the HRV EARTHMOVING 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 HRV EARTHMOVING 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, 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 22 March 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 case involves an application for the approval of an enterprise agreement between HRV Earthmoving Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The application was lodged with the Fair Work Commission (FWC) to validate the agreement for the period 2020-2023. The union and the employer sought to formalise their terms of employment for the workers involved in subcontractor earthmoving, excavation, and drainage activities. The FWC was required to determine if the agreement complied with the relevant legislative requirements and whether it was fair and reasonable.

The primary legal issues the FWC considered were whether the agreement met the criteria for approval under the Fair Work Act 2009. This involved assessing if the agreement had been fairly negotiated and if it adhered to the provisions regarding the treatment of employees, including minimum wages, penalties, leave entitlements, and other terms and conditions of employment. The FWC also needed to determine if the agreement contained any terms that would adversely affect the employees' rights or protections under the Fair Work Act.

After reviewing the submissions from both parties, the FWC found that the agreement was fairly negotiated and contained terms that were not less favourable than the applicable awards or the national employment standards. The FWC also determined that the agreement did not include any terms that would be unfair to the employees. Consequently, the FWC approved the enterprise agreement, deeming it to be in compliance with the statutory requirements and fair and reasonable in its terms. The approval of the agreement ensures that the workers involved in subcontractor earthmoving, excavation, and drainage activities under HRV Earthmoving Pty Ltd are covered by a formalised set of employment terms and conditions for the specified period.

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