Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 2974

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/3452)

CUBIC TUNNEL RAIL 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, 29 AUGUST 2022

Application for approval of the CUBIC TUNNEL RAIL 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 CUBIC TUNNEL RAIL 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 5 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 by CUBIC TUNNEL RAIL CIVIL PTY LTD and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) for the approval of their Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The application was heard in the Fair Work Commission. The primary dispute centred on whether the proposed enterprise agreement complied with the relevant legislative requirements, particularly those outlined in the Fair Work Act 2009. The key issues for the court were whether the agreement met the statutory criteria for approval and if it provided for fair and reasonable terms and conditions of employment.

The court examined the provisions of the agreement to determine if it complied with the statutory minimum terms and conditions. It assessed whether the agreement adequately covered all mandatory terms and conditions, including those related to wages, hours of work, leave entitlements, and other employment conditions. The court also scrutinised whether the agreement was free from any provisions that would unfairly discriminate against employees. Furthermore, the court considered if the agreement had been made in good faith and if it was consistent with the principles of the Fair Work Act. After a thorough analysis, the court found that the agreement complied with all legislative requirements and was thus approved.

In summary, the court found that the proposed Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023 met all the necessary statutory criteria and was fair and reasonable. The court's decision was based on a detailed examination of the agreement's provisions and their alignment with the Fair Work Act. Consequently, the court approved the agreement, allowing it to come into effect as intended. The final orders of the court confirmed the approval of the agreement, ensuring that it would govern the terms and conditions of employment for the relevant employees moving forward.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established