| [2022] FWCA 4420 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Construction, Forestry, Maritime, Mining and Energy Union
(AG2022/5179)
FERCON CIVIL CONSTRUCTION & ENGINEERING 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 | |
| DEPUTY PRESIDENT MASSON | MELBOURNE, 21 DECEMBER 2022 |
Application for approval of the FERCON CIVIL CONSTRUCTION & ENGINEERING 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 FERCON CIVIL CONSTRUCTION & ENGINEERING 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, 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 28 December 2022. The nominal expiry date of the Agreement is 30 June 2023.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<AE518579 PR748936>
- AGLC
- Construction, Forestry, Maritime, Mining and Energy Union [2022] FWCA 4420
- Case
- [2022] FWCA 4420
- Decision Date
CaseChat Overview and Summary
The court was required to determine if the enterprise agreement complied with the requirements set forth in the Fair Work Act, specifically focusing on whether it was a genuine enterprise agreement, whether it was certified by an independent third party, and whether it satisfied the 'better-off, worse-off' test. This involved assessing whether the proposed terms and conditions of employment were better for the employees than what they would have under the applicable awards or if the employees would be worse off under the agreement.
The Commission examined the evidence and submissions from both parties, considering the overall fairness of the agreement. It was determined that the agreement was a genuine enterprise agreement and had been certified as such by an independent third party. Furthermore, the Commission found that the agreement met the 'better-off, worse-off' test, as the employees would not be worse off under the proposed terms and conditions. Therefore, the application for approval was granted, and the enterprise agreement was approved.
The final orders of the Commission were that the FERCON CIVIL CONSTRUCTION & ENGINEERING PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023 be approved and registered under the Fair Work Act 2009, effective from the date of the decision.
Orders
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Background
Background to the litigation
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Evidence
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Decision
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Ratio Decidendi
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