Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 3278

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/3788)

GILLIES CIVIL PTY LTD AS TRUSTEE FOR GILLIES FAMILY TRUST T/As GILLIES CIVIL 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, 20 SEPTEMBER 2022

Application for approval of the GILLIES CIVIL PTY LTD AS TRUSTEE FOR GILLIES FAMILY TRUST T/As GILLIES CIVIL 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 GILLIES CIVIL PTY LTD AS TRUSTEE FOR GILLIES FAMILY TRUST T/As GILLIES CIVIL 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 27 September 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 this matter, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) applied to the Fair Work Commission for approval of an enterprise agreement between Gillies Civil Pty Ltd as trustee for the Gillies Family Trust, trading as Gillies Civil, and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The application was made under section 230 of the Fair Work Act 2009. The legal issues before the court centred on whether the proposed agreement was suitable for registration under the Act, including whether it complied with the good faith bargaining requirement, and whether it contained terms that were unlawful or not genuinely intended to be part of the agreement. The court considered the evidence and submissions from both parties, along with relevant case law. The Commission found that the agreement was suitable for registration, as it met the requirements of the Act, including the good faith bargaining test, and did not contain any terms that were unlawful or not genuinely intended to be part of the agreement. The court noted that the parties had engaged in genuine bargaining and had reached a fair and reasonable agreement. The court approved the enterprise agreement, and it will now be registered and enforceable under the Fair Work Act 2009.

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