Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 3237

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/3757)

RMA CIVIL CONSTRUCTION MAJOR PROJECTS 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, 19 SEPTEMBER 2022

Application for approval of the RMA CIVIL CONSTRUCTION MAJOR PROJECTS 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 RMA CIVIL CONSTRUCTION MAJOR PROJECTS 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 26 September 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 case involved an application for approval of an enterprise agreement between Civil Construction Major Projects Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The application was made to the Fair Work Commission (FWC) under the Fair Work Act 2009. The dispute centred around the terms and conditions of employment for subcontractors in the earthmoving, excavation, and drainage sectors, as outlined in the proposed agreement for the period 2020-2023.

The primary legal issue before the FWC was whether the proposed agreement complied with the requirements of the Fair Work Act, including whether it met the "better off overall test" (BOOT). This test requires that employees be no worse off financially under the new agreement than they would be under their previous terms of employment. The FWC also needed to consider whether the agreement was in the interests of the broader workforce and whether it was consistent with the national system of industrial determination.

The FWC found that the proposed agreement did meet the BOOT, as the changes proposed in the agreement would not result in employees being worse off financially. The FWC further determined that the agreement was in the interests of the broader workforce and aligned with the principles of the national system of industrial determination. The FWC took into account the parties' bargaining positions, the nature of the industry, and the specific needs of the subcontractors in the earthmoving, excavation, and drainage sectors. The FWC approved the agreement, recognising the need for flexibility and the importance of addressing the unique challenges faced by subcontractors in these industries.

The FWC's decision was grounded in a comprehensive analysis of the evidence presented by both parties and a careful consideration of the relevant legal framework. The FWC's approval of the agreement marked a significant step towards establishing fair and equitable terms for subcontractors in the earthmoving, excavation, and drainage sectors, ensuring that they are treated justly within the broader construction industry.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established