Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 2777

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/3299)

NELSON ASPHALTING AND EXCAVATIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Asphalt Enterprise Agreement 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 17 AUGUST 2022

Application for approval of the NELSON ASPHALTING AND EXCAVATIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Asphalt Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the NELSON ASPHALTING AND EXCAVATIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Asphalt 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 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 24 August 2022. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, the Construction, Forestry, Maritime, Mining and Energy Union, on behalf of its members, applied to the Fair Work Commission for the approval of an enterprise agreement between NELSON ASPHALTING AND EXCAVATIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Asphalt Enterprise Agreement 2020-2023. The primary issue before the Fair Work Commission was whether the proposed enterprise agreement complied with the relevant legislative requirements and if it was fair and reasonable in all its terms.

The Commission considered the fairness of the agreement by examining various aspects, including the negotiation process, the content of the agreement, and its compliance with the Fair Work Act. The court evaluated whether the agreement met the "better off, worse off or no worse off" test, ensuring that it did not disadvantage employees. Furthermore, the Commission assessed whether the agreement contained necessary protections and provisions for employees' rights and obligations.

The Fair Work Commission found that the proposed enterprise agreement was fair and reasonable in all its terms. The agreement was negotiated in good faith, and it provided adequate protections for employees. The Commission concluded that the agreement complied with the statutory requirements and passed the "better off, worse off or no worse off" test. Consequently, the Commission approved the enterprise agreement.

As a result of the Fair Work Commission's decision, the NELSON ASPHALTING AND EXCAVATIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Asphalt Enterprise Agreement 2020-2023 was approved, and it became legally binding on the parties involved.

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