Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 3341

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/3960)

WALKER EQUIPMENT HIRE PTY LTD AS TRUSTEE FOR B & L WALKER FAMILY TRUST T/AS WALKER GRADER HIRE 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, 29 SEPTEMBER 2022

Application for approval of the WALKER EQUIPMENT HIRE PTY LTD AS TRUSTEE FOR B & L WALKER FAMILY TRUST T/As WALKER GRADER HIRE 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 WALKER EQUIPMENT HIRE PTY LTD AS TRUSTEE FOR B & L WALKER FAMILY TRUST T/As WALKER GRADER HIRE 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 6 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

In the Federal Circuit Court of Australia, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) applied for approval of a new enterprise agreement between Walker Equipment Hire Pty Ltd as trustee for B & L Walker Family Trust t/as Walker Grader Hire and the CFMEU. The agreement, known as the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023, was proposed to cover a range of terms and conditions of employment for workers in the subcontractor earthmoving, excavation and drainage industry. The union sought to have the agreement approved as a new enterprise agreement under the Fair Work Act 2009.

The court needed to determine whether the agreement met the requirements of the Fair Work Act, including whether it was in writing, complied with the relevant provisions of the Act, and was certified by the Fair Work Commission as being free from prohibited content. The court also had to consider whether the agreement was genuinely an enterprise agreement, and whether it was made in good faith and by the appropriate bargaining representatives. The court had to assess whether the agreement was likely to promote harmony, stability and concurrency in industrial relations and whether it contained provisions that were reasonably necessary for the protection of the employees' interests.

The court found that the agreement met all of the necessary requirements for approval under the Fair Work Act. The agreement was in writing, complied with the relevant provisions of the Act, and was certified by the Fair Work Commission as being free from prohibited content. The court was satisfied that the agreement was genuinely an enterprise agreement and was made in good faith and by the appropriate bargaining representatives. The court was also satisfied that the agreement was likely to promote harmony, stability and concurrency in industrial relations and contained provisions that were reasonably necessary for the protection of the employees' interests. The court approved the agreement as a new enterprise agreement under the Fair Work Act.

The court ordered that the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023 be approved as a new enterprise agreement under section 175 of the Fair Work Act 2009. The agreement was to be registered by the Fair Work Commission and would be in effect from 1 July 2020 until 30 June 2023, unless terminated earlier in accordance with the terms of the agreement or the Fair Work Act.

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