Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 684

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/431)

D-TECH NDD SERVICES 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, 8 MARCH 2023

Application for approval of the D-TECH NDD SERVICES 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 D-TECH NDD SERVICES 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 15 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 parties involved in this case were the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and D-Tech NDD Services Pty Ltd. The dispute centred around the approval of the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement for the years 2020-2023. This agreement was to be applied across various sectors, including construction, forestry, maritime, mining, and energy. The Fair Work Commission (FWC) was the court tasked with making a decision on the application for the approval of the enterprise agreement.

The legal issues before the FWC were whether the proposed agreement met the necessary standards under the Fair Work Act 2009 and whether it was appropriate for the FWC to approve the agreement. The FWC had to consider various factors, including the agreement's compliance with the provisions of the Act, the extent to which it provided for the efficient determination of terms and conditions of employment, and whether it would be in the best interests of the employees covered by the agreement. The court was also required to determine whether the agreement provided for fair and reasonable terms and conditions of employment, and if it was necessary to make an order to protect the interests of employees.

In delivering its decision, the FWC found that the proposed agreement was compliant with the Fair Work Act and met the necessary standards for approval. The court considered the agreement to be fair and reasonable, providing for the efficient determination of terms and conditions of employment and in the best interests of the employees covered by the agreement. The FWC determined that the agreement would facilitate industrial harmony and was necessary to protect the interests of the employees. Consequently, the FWC approved the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023 between D-Tech NDD Services Pty Ltd and the CFMEU (Victorian Construction and General Division).

The final orders of the FWC were to approve the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023 between D-Tech NDD Services Pty Ltd and the CFMEU (Victorian Construction and General Division). The agreement was to be registered with the FWC and would come into effect on the date of the decision. The approval of the agreement ensures that the terms and conditions of employment for the employees covered by the agreement are regulated in a fair and reasonable manner, promoting industrial harmony and protecting the interests of the employees.

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