Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 3337

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/3911)

VIC EARTH & CIVIL 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, 27 SEPTEMBER 2022

Application for approval of the VIC EARTH & CIVIL 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 VIC EARTH & CIVIL 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 4 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 court involved an application for the approval of the VIC EARTH & CIVIL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The application was brought under the Fair Work Act 2009, seeking the Fair Work Commission's endorsement of the enterprise agreement, which governs the employment conditions of subcontractors in the earthmoving, excavation, and drainage sectors in Victoria.

The central legal issue that the court needed to address was whether the enterprise agreement met the requirements of section 230 of the Fair Work Act 2009. This section mandates that an enterprise agreement be approved if it ensures that employees are not worse off, and that it complies with the provisions of the Act, including those related to procedural fairness. The court had to determine if the agreement adhered to these legal standards and whether it was fair and reasonable in all its terms.

In its reasoning, the court examined the terms and conditions of the enterprise agreement, including wages, hours of work, and other employment-related matters. The court found that the agreement did not result in employees being worse off and that it complied with the procedural fairness requirements of the Act. The court also concluded that the agreement was fair and reasonable, taking into account the interests of both employers and employees. Based on these findings, the court approved the enterprise agreement as sought by the applicant.

As a result of the court's decision, the VIC EARTH & CIVIL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023 was approved and registered under the Fair Work Act 2009. This outcome ensures that the employment conditions of subcontractors in the specified sectors in Victoria are governed by the terms of the approved enterprise agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established