Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 3125

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/3625)

RAF 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, 9 SEPTEMBER 2022

Application for approval of the RAF 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 RAF 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 16 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 Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and RAF Civil Pty Ltd applied to the Fair Work Commission for approval of their Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The application was contested by the Building and Construction Trades Union (BCTU) and the Australian Workers' Union (AWU). The application was heard in the Fair Work Commission, a tribunal with specialised expertise in employment and workplace relations matters.

The key legal issues were whether the proposed agreement met the requirements of the Fair Work Act 2009, particularly sections 234 and 235, which outline the criteria for an enterprise agreement to be approved. The Commission had to determine if the agreement was "fair and reasonable" and if it contained the necessary "good faith" elements. Furthermore, the Commission needed to ensure that the agreement did not adversely affect employees' existing rights and conditions and that it did not discriminate against particular groups of workers.

The Fair Work Commission found that the proposed agreement met all necessary criteria. It was fair and reasonable, contained elements of good faith, and did not adversely affect existing employee rights or conditions. The Commission noted the collaborative efforts of the parties in reaching the agreement and the comprehensive nature of the agreement in covering various aspects of employment conditions. The Commission approved the agreement, finding it met the statutory requirements for registration.

The Fair Work Commission approved the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023 between RAF Civil Pty Ltd and the CFMEU. The decision underscores the importance of meeting statutory criteria for enterprise agreements, including fairness, reasonableness, and good faith.

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