Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 3406

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/4029)

UPTRACK 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, 6 OCTOBER 2022

Application for approval of the UPTRACK 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 UPTRACK 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 13 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 parties in this matter are UPTRACK PTY LTD and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) (Victorian Construction and General Division). The dispute concerns the application for approval of the UPTRACK PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The case was heard in the Fair Work Commission.

The legal issues before the court were whether the agreement met the requirements for approval under the Fair Work Act 2009 and whether it complied with the relevant provisions of the Act and the Fair Work Regulations. The court had to determine if the agreement was made in good faith, if it contained the essential elements required by the Act, and if it was made without any improper influence or coercion.

The court found that the agreement was made in good faith and that it contained all the essential elements required by the Fair Work Act 2009. The court also found that the agreement was made without any improper influence or coercion. The court considered that the agreement provided for fair and reasonable terms and conditions of employment for the employees covered by the agreement. The court approved the agreement, finding it to be in the best interests of the employees and the employer. The court noted that the agreement provided for a fair and reasonable balance of rights and obligations for both parties, and that it was made in a manner that was consistent with the principles of the Fair Work Act 2009.

The final order of the court was that the UPTRACK PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023 be approved as a registered agreement under the Fair Work Act 2009. The agreement was to be registered on the date of the decision and would be in effect for a period of three years from the date of registration. The court also ordered that a copy of the decision be provided to both parties and that the agreement be published on the Fair Work Commission's website.

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