Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 3589

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/4236)

STARBUCK EXCAVATION PTY LTD AS TRUSTEE FOR STARBUCK FAMILY TRUST 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, 19 OCTOBER 2022

Application for approval of the STARBUCK EXCAVATION PTY LTD AS TRUSTEE FOR STARBUCK FAMILY TRUST 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 STARBUCK EXCAVATION PTY LTD AS TRUSTEE FOR STARBUCK FAMILY TRUST 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 26 October 2022. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

The case involved an application by the Starbuck Excavation Pty Ltd as trustee for the Starbuck Family Trust, along with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) Victorian Construction and General Division, for the approval of their Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The application was heard by the Fair Work Commission. The primary legal issue before the Commission was whether the proposed enterprise agreement complied with the requirements of the Fair Work Act 2009, particularly concerning the procedural fairness and the appropriateness of the agreement's terms and conditions for the workforce.

The Commission examined whether the agreement was made in good faith and whether it provided for minimum terms and conditions that were no less favourable than the relevant award or safety net award. The Commission also assessed whether the agreement met the requirements of procedural fairness, including the provision of relevant information to the employees and an opportunity for them to be represented in the negotiations. In its reasoning, the Commission found that the agreement was made in good faith, contained minimum terms and conditions that were no less favourable than the relevant award, and satisfied the procedural fairness requirements. The Commission approved the agreement, acknowledging that it met the necessary statutory criteria and provided a fair framework for the employees.

Consequently, the Fair Work Commission approved the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The Commission's decision was based on the evidence presented, which demonstrated that the agreement was fair and met the legal requirements for approval under the Fair Work Act 2009. This approval ensures that the agreement will govern the employment conditions of the relevant employees 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