Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 3158

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/3664)

BUNDIRUM NOMINEES T/AS MFC CONTRACTORS 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, 13 SEPTEMBER 2022

Application for approval of the BUNDIRUM NOMINEES T/As MFC CONTRACTORS 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 BUNDIRUM NOMINEES T/As MFC CONTRACTORS 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 20 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

The case involved an application for approval of a proposed enterprise agreement between Bundirum Nominees trading as MFC Contractors and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for the period 2020-2023. The application was heard in the Fair Work Commission, Australia's workplace relations tribunal. The CFMEU sought approval of the agreement on behalf of its members who were subcontractors in the earthmoving, excavation and drainage sectors working for MFC Contractors.

The legal issues before the Commission related to whether the proposed agreement complied with the requirements of the Fair Work Act 2009, including whether it contained genuine bargaining between the parties, whether it provided for minimum terms and conditions of employment, and whether it met the "better off overall test" which requires the agreement to provide employees at least the same terms and conditions as the relevant award or applicable law. The Commission had to determine if the agreement provided for a fair and reasonable balance of rights and obligations between the parties.

The Commission found that genuine bargaining had taken place between the parties and that the proposed agreement contained all the required minimum terms and conditions. It also found that the agreement passed the better off overall test, providing employees with terms and conditions that were at least as good as, and in some cases better than, the relevant award. The Commission approved the proposed agreement on the basis that it met the statutory requirements.

The Fair Work Commission approved the Bundirum Nominees T/As MFC Contractors and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The agreement was approved as meeting the requirements of the Fair Work Act 2009 and would now provide the terms and conditions of employment for the relevant employees.

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