Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 2949

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/3438)

JC EXCAVATIONS PTY LTD and the CFMEU (Victorian Construction and General Division) SubcontractorsEarthmoving, Excavation and Drainage Enterprise Agreement 2020-2023

Building, metal and civil construction industries
COMMISSIONER MATHESON	SYDNEY, 26 AUGUST 2022

Application for approval of the JC EXCAVATIONS 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 JC EXCAVATIONS 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 2 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 involves an application for the approval of an enterprise agreement between JC Excavations Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The application was heard by the Fair Work Commission, which is responsible for resolving workplace disputes in Australia. The dispute centres on whether the proposed agreement complies with the requirements of the Fair Work Act 2009 and whether it meets the necessary standards for employee protection and workplace fairness.

The central legal issues the court had to address were whether the proposed enterprise agreement contained all the mandated terms and conditions, and if it adhered to the provisions of the Fair Work Act. Specifically, the court had to ensure that the agreement covered all necessary areas, such as wages and conditions, and that it did not unfairly disadvantage any party. The court also had to consider whether the agreement was genuinely negotiated and if it was made in good faith.

The Fair Work Commission found that the proposed agreement complied with the necessary legal requirements and met the standards for employee protection and fairness. The court determined that the agreement was genuinely negotiated, contained all the mandated terms and conditions, and did not unfairly disadvantage any party. The commission concluded that the agreement was made in good faith and met the necessary statutory requirements. Consequently, the Fair Work Commission approved the application for the approval of the enterprise agreement.

As a result of the court's decision, the JC Excavations Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023 was approved and is now legally binding for the duration of the agreement. The agreement will govern the terms and conditions of employment for the employees of JC Excavations Pty Ltd and the union members covered by the agreement.

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