Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 383

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/167)

EHA CONSTRUCTION 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, 10 FEBRUARY 2023

Application for approval of the EHA CONSTRUCTION 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 EHA CONSTRUCTION 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 17 February 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 approval of the EHA Construction Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The applicant, EHA Construction, sought to have the enterprise agreement registered with the Fair Work Commission. The Construction, Forestry, Maritime, Mining and Energy Union, acting on behalf of the employees, did not oppose the application but made submissions regarding certain provisions.

The central legal issues the court needed to address were whether the agreement complied with the relevant provisions of the Fair Work Act 2009 and whether it met the requirements for registration under the Act. This included assessing whether the agreement contained appropriate mechanisms for the resolution of disputes and whether it met the requirements for coverage and bargaining representation.

The Fair Work Commission found that the agreement was in compliance with the Fair Work Act. The Commission noted that the agreement contained appropriate dispute resolution mechanisms and met the requirements for coverage and bargaining representation. The Commission also found that the agreement did not contain any terms that would be contrary to public policy. The Commission therefore approved the application and registered the enterprise agreement.

The Fair Work Commission's decision provides guidance on the requirements for the registration of enterprise agreements. The Commission's approval of the agreement in this case suggests that agreements that meet the statutory requirements for dispute resolution, coverage, and bargaining representation are likely to be approved by the Commission. This decision is therefore likely to be of assistance to employers and unions seeking to negotiate and register enterprise agreements.

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