Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 2958

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/3456)

VICFLOW 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 VICFLOW 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 VICFLOW 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 before the Fair Work Commission involved an application for approval of a proposed enterprise agreement between VICFLOW CIVIL PTY LTD and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The proposed agreement was for subcontractors in the earthmoving, excavation, and drainage sectors for the period 2020-2023. The parties aimed to establish terms and conditions for employment in these areas, including wages, hours of work, and other employment-related matters. The Commission was required to assess whether the proposed agreement complied with relevant provisions of the Fair Work Act 2009, including ensuring it provided a safety net for employees and was free from prohibited content.

The primary legal issues before the Commission involved ensuring the proposed agreement met the requirements of the Fair Work Act, particularly sections relating to the "better off overall test" and the prohibition against unfair content. The Commission had to determine if the agreement provided employees with a safety net that was no less favourable than applicable awards or the national minimum terms and conditions. Additionally, the Commission needed to assess whether the agreement contained any prohibited content, such as provisions that would undermine industrial action or facilitate discrimination.

In evaluating the proposed agreement, the Commission examined the provisions related to wages, conditions, and other terms. It found that the agreement provided a safety net that was at least equivalent to the applicable awards and national minimum terms. The Commission also confirmed that the agreement did not contain any prohibited content, such as provisions that would undermine industrial action or facilitate discrimination. Consequently, the Commission determined that the agreement met the statutory requirements and approved it as a registered enterprise agreement.

The Fair Work Commission approved the proposed enterprise agreement between VICFLOW CIVIL PTY LTD and the CFMEU, effective from the date of registration. The agreement was deemed compliant with the Fair Work Act, ensuring that it provided a safety net for employees and was free from prohibited content. This decision allowed the parties to proceed with implementing the agreed terms and conditions for the specified period.

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