Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 3722

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/4347)

EARTHTEK EXCAVATIONS 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 JOHNS	MELBOURNE, 27 OCTOBER 2022

Application for approval of the EARTHTEK EXCAVATIONS 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 EARTHTEK EXCAVATIONS 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 3 November 2022. 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 court involved an application for the approval of an enterprise agreement between Earthtek Excavations Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The application was brought under the Fair Work Act 2009, seeking formal endorsement of the terms of the agreement which had been negotiated between the parties. The dispute arose from the need to ensure that the agreement complied with the statutory requirements of the Act, particularly in relation to the bargaining process and the terms of the agreement itself.

The legal issues before the court included whether the bargaining process had been conducted in good faith and whether the agreement had been fairly made. Additionally, the court needed to determine if the terms of the agreement were consistent with the Fair Work Act and whether the agreement provided for appropriate mechanisms for the resolution of disputes. The court was also required to consider whether the agreement met the criteria for approval as set out in the legislation, including whether it provided for a safety net of minimum terms and conditions.

The court considered the submissions from both parties and reviewed the terms of the agreement. It found that the bargaining process had been conducted in good faith, with both parties engaging in negotiations that were comprehensive and inclusive. The court also determined that the terms of the agreement were fair and met the safety net requirements under the Fair Work Act. It was noted that the agreement provided for a dispute resolution process which complied with the statutory requirements. After considering all the evidence and arguments, the court was satisfied that the agreement met the criteria for approval and made the necessary orders to approve the agreement.

The court's final orders included the approval of the agreement, which is now formally recognised under the Fair Work Act. The agreement will provide the framework for the employment conditions of the employees covered by the agreement, ensuring that they are protected by a set of agreed terms and conditions of employment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established