Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 3689

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/4299)

30XY GROUP 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, 24 OCTOBER 2022

Application for approval of the 30XY GROUP 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 30XY GROUP 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 31 October 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 Fair Work Commission involved an application for the approval of a new enterprise agreement between the 30XY Group Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The application was made by the union on behalf of the employees, and the employer contested certain provisions. The dispute was heard in the Fair Work Commission, which has jurisdiction over enterprise agreements and related matters under the Fair Work Act 2009.

The legal issues that the Commission had to address included whether the agreement complied with the requirements of the Fair Work Act, specifically sections relating to the scope, form, and content of enterprise agreements. The Commission also needed to determine if the agreement met the "better off overall test" (BOOT), ensuring that no employee would be worse off and at least one employee would be better off financially compared to the applicable awards. Additionally, the Commission examined if the agreement provided adequate protection for employees' rights and conditions, including provisions on minimum wages, penalty rates, leave entitlements, and other benefits.

The Commission considered various submissions from both parties and examined the provisions of the proposed agreement in detail. It found that the agreement generally complied with the legal requirements of the Fair Work Act, including meeting the BOOT. The Commission highlighted that the agreement provided for a mix of wage increases and additional benefits that, on balance, were favourable to the employees. The Commission also noted that the agreement contained adequate protections for employee rights and conditions, including provisions that aligned with or exceeded the relevant awards. After thorough deliberation, the Commission approved the agreement, finding it to be fair and reasonable.

The Fair Work Commission issued an order approving the 30XY Group Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The agreement was deemed to be in effect from the date of the Commission's decision, ensuring that the terms and conditions outlined in the agreement would govern the employment relationship between the parties for the specified period.

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