Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 2475

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/2408)

MARC GRAY EARTHMOVING 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
DEPUTY PRESIDENT MASSON	MELBOURNE, 25 JULY 2022

Application for approval of the MARC GRAY EARTHMOVING 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 MARC GRAY EARTHMOVING 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 1 August 2022. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and MARC GRAY EARTHMOVING PTY LTD sought approval of a new enterprise agreement. The dispute was heard by the Fair Work Commission (FWC) under the Fair Work Act 2009. The CFMEU sought approval of the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023, which was to apply to employees of MARC GRAY EARTHMOVING PTY LTD.

The primary legal issue was whether the agreement met the requirements for approval under the Fair Work Act. The FWC had to assess whether the agreement provided for a fair and efficient workplace, was free from coercion and undue influence, and was made in good faith. The CFMEU argued that the agreement was fair and met all necessary criteria, while MARC GRAY EARTHMOVING PTY LTD did not oppose the agreement but highlighted certain provisions that needed clarification. The FWC examined the provisions of the agreement, the bargaining process, and whether the agreement would promote harmonious, productive and cooperative workplace relations.

After careful consideration, the FWC found that the agreement was fair and met all the criteria for approval under the Fair Work Act. The FWC noted that the agreement contained provisions that were consistent with the principles of fairness and good faith. The FWC also found that the agreement was made in good faith and was free from coercion and undue influence. The FWC approved the agreement, subject to certain minor amendments to clarify certain provisions.

The FWC made an order approving the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023, with the minor amendments noted by the FWC. The order was effective from the date of the decision and applied to the employees of MARC GRAY EARTHMOVING PTY LTD. The CFMEU and MARC GRAY EARTHMOVING PTY LTD were bound by the terms of the approved agreement, subject to any further orders made by the FWC.

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