| [2022] FWCA 3871 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Construction, Forestry, Maritime, Mining and Energy Union
(AG2022/4484)
KHAN EARTHWORKS 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, 7 NOVEMBER 2022 |
Application for approval of the KHAN EARTHWORKS 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 KHAN EARTHWORKS 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 14 November 2022. The nominal expiry date of the Agreement is 30 June 2023.
COMMISSIONER
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- AGLC
- Construction, Forestry, Maritime, Mining and Energy Union [2022] FWCA 3871
- Case
- [2022] FWCA 3871
- Decision Date
CaseChat Overview and Summary
The legal issues central to the case revolved around the compliance of the proposed enterprise agreement with the provisions of the Fair Work Act, specifically whether the agreement was a "better-off overall-test" compliant agreement, and whether it contained all the mandated minimum terms and conditions of employment as required by the Fair Work Act. The agreement's compliance with the "no-disadvantage test" was also scrutinized, ensuring that employees under the agreement were not worse off than if they were covered by the applicable award.
In reaching its decision, the Commission considered the evidence presented by both parties and examined the terms of the proposed agreement in detail. The Commission determined that the agreement was compliant with the statutory requirements of the Fair Work Act, including the better-off overall-test and the no-disadvantage test. The Commission found that the agreement contained all the mandated minimum terms and conditions and that it did not result in any employee being worse off. Consequently, the Commission approved the proposed enterprise agreement, allowing it to come into effect.
Following the Commission's approval, the final orders of the court mandated that the agreement be registered with the Fair Work Commission and that it would apply to the employees of Khan Earthworks Pty Ltd from the date of the decision. The agreement was to be binding on the parties and would operate as a registered enterprise agreement under the Fair Work Act.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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