Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 3261

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/3753)

ALL SYSTEMS CONTRACTORS 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, 19 SEPTEMBER 2022

Application for approval of the ALL SYSTEMS CONTRACTORS 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 ALL SYSTEMS CONTRACTORS 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 26 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 the matter of the Fair Work Commission, an application was brought by the Australian Building and Construction Commission (ABCC) for approval of the ALL SYSTEMS CONTRACTORS PTY LTD and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The dispute arose out of concerns regarding the terms and conditions set out in the proposed enterprise agreement between the ABCC and the CFMEU, which was intended to cover the employment of subcontractors in the earthmoving, excavation, and drainage sectors across Victoria.

The legal issues before the Commission included whether the proposed agreement provided adequate protections for the rights of workers and employers, whether it complied with the relevant provisions of the Fair Work Act 2009, and whether it met the criteria for being a genuinely agreed-upon enterprise agreement. The Commission was required to determine whether the agreement was in the best interests of the employees and the industry, and whether it would promote fairness and avoid detriment to any party involved.

After thorough examination of the evidence presented and consideration of the relevant legal principles, the Commission found that the proposed enterprise agreement did not adequately protect the rights of workers and employers, and failed to comply with the statutory requirements of the Fair Work Act. The Commission concluded that the agreement did not meet the criteria for being a genuinely agreed-upon enterprise agreement and, therefore, it was not in the best interests of the employees or the industry. The Commission ultimately decided not to approve the agreement.

The Fair Work Commission did not approve the ALL SYSTEMS CONTRACTORS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023, and directed the parties to renegotiate the agreement in accordance with the relevant legal requirements and principles.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established