Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 2307

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/2284)

KCJ RAIL 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, 15 JULY 2022

Application for approval of the KCJ RAIL 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 KCJ RAIL 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 22 July 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 matter before the Fair Work Commission involved KCJ Rail Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), specifically the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The core dispute centred on the application for approval of this enterprise agreement, which was submitted to the Fair Work Commission. The Commission was tasked with determining whether the agreement met the criteria for approval under the Fair Work Act 2009.

The legal issues that required resolution encompassed whether the agreement contained all the mandatory terms specified in the Fair Work Act, whether the agreement had been genuinely negotiated, and if the agreement was in compliance with other statutory requirements. Additionally, the Commission needed to consider whether the agreement would promote simplicity, certainty and predictability in the workplace, and whether it would provide for the efficient and productive operation of the workplace.

The Fair Work Commission assessed the agreement against the statutory criteria and found that it satisfied all the mandatory terms outlined in the Fair Work Act. The Commission was satisfied that the agreement had been genuinely negotiated and was in compliance with all other statutory requirements. The Commission also determined that the agreement would promote simplicity, certainty and predictability in the workplace and provide for the efficient and productive operation of the workplace. Accordingly, the Fair Work Commission approved 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