Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 2867

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/3367)

SWK EARTHWORKS 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, 23 AUGUST 2022

Application for approval of the SWK EARTHWORKS 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 SWK EARTHWORKS 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 30 August 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

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union applied for the approval of a proposed enterprise agreement between SWK Earthworks Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The dispute arose from the negotiation and terms of this enterprise agreement, which covers employees working in earthmoving, excavation, and drainage services for subcontractors within the Victorian construction industry.

The key legal issues the Commission had to address were whether the proposed agreement met the criteria for approval under the Fair Work Act 2009, specifically if it provided for a fair and efficient system of employee representation and if it included necessary minimum terms and conditions. The Commission also had to determine whether the agreement appropriately balanced the interests of employees and employers, ensuring it was not detrimental to the employees.

After thorough examination of the application and submissions from both parties, the Commission found that the proposed agreement did not meet the statutory requirements. It concluded that certain provisions did not adequately protect employee rights and that the agreement failed to establish a fair and efficient system for employee representation. Additionally, some terms and conditions did not meet the necessary minimum standards set out in the Fair Work Act. Consequently, the Commission did not approve the agreement.

In summary, the Fair Work Commission's decision highlighted the necessity for enterprise agreements to adhere strictly to statutory provisions and to balance the interests of both employees and employers effectively. The Commission's refusal to approve the agreement underscores the importance of ensuring that such agreements provide fair and adequate protections for employees and establish an effective system of representation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established