Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 3369

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/3977)

BIA INFRASTRUCTURE (VIC) 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, 30 SEPTEMBER 2022

Application for approval of the BIA INFRASTRUCTURE (VIC) 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 BIA INFRASTRUCTURE (VIC) 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 7 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 case before the Fair Work Commission involved an application by BIA Infrastructure (Vic) Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) for approval of a proposed enterprise agreement. The agreement in question was the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The Commission was tasked with determining whether the agreement met the criteria for approval under the Fair Work Act 2009. The legal issues the Court had to decide involved assessing the fairness and compliance of the agreement with the relevant statutory requirements, including the 'better off overall test' and provisions related to employee protections and entitlements.

The Commission began by examining the 'better off overall test', which required that the proposed agreement be more favourable to the employees than their previous entitlements under the applicable award. It also needed to ensure that the agreement did not undermine the safety net of minimum entitlements and did not have a detrimental impact on the terms and conditions of employment. The Commission further assessed whether the agreement provided adequate protections for employees in terms of wages, hours, leave, and other conditions. Additionally, it had to ensure that the agreement complied with procedural requirements, including proper consultation and negotiation processes.

After thorough examination, the Commission found that the proposed agreement met all the necessary statutory requirements for approval. It satisfied the 'better off overall test', provided adequate protections for employees, and adhered to the procedural requirements outlined in the Fair Work Act 2009. Consequently, the Commission approved the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023, enabling it to be formally registered and enforceable.

The Commission ordered that the agreement be approved and registered under the Fair Work Act 2009, effective from the date of the decision. This approval allowed the agreement to be used as the governing document for the terms and conditions of employment for the relevant employees, providing a framework for their rights and obligations during 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