Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 3509

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/4207)

INDEPENDENT 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 MATHESON	SYDNEY, 18 OCTOBER 2022

Application for approval of the INDEPENDENT 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 INDEPENDENT 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 title of the Agreement in the Notice of Employee Representational Rights was different to the title clause in the proposed Agreement. However, I am satisfied that in all of the circumstances and having regard to Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[1], this constitutes a minor procedural or technical error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

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 25 October 2022. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

[1] [2019] FWCFB 318.

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 the Independent Earthworks Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The application was brought by the Construction, Forestry, Maritime, Mining and Energy Union, and Independent Earthworks Pty Ltd. The dispute centred around the terms and conditions of employment for subcontractors within the earthmoving, excavation and drainage sectors in Victoria.

The legal issues the court was required to decide involved whether the proposed enterprise agreement complied with the Fair Work Act 2009, including the requirements for the terms and conditions of employment. Specifically, the court needed to assess whether the agreement met the minimum standards of the National Employment Standards, whether the provisions regarding wages and conditions were fair and reasonable, and whether there were any unfair provisions that could not be separated from the agreement.

The court considered the provisions of the proposed agreement, including the minimum wage rates, penalty rates, leave entitlements, and dispute resolution mechanisms. The court found that the agreement contained provisions that met the minimum standards set out in the National Employment Standards and that the terms and conditions were fair and reasonable. The court also found that any unfair provisions could be separated from the agreement, and therefore, the agreement could be approved as a whole. The court approved the agreement, subject to certain minor amendments to ensure compliance with the Fair Work Act.

The final orders of the court included the approval of the proposed enterprise agreement, subject to the minor amendments. The court also ordered that the agreement be registered with the Fair Work Commission and that the parties take all necessary steps to give effect to the agreement. The court further ordered that the agreement be published on the Fair Work Commission's website and that the parties take all reasonable steps to ensure that the agreement is brought to the attention of all affected employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established