Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 2159

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/2095)

QUEEN CONSTRUCTIONS 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 LEE	MELBOURNE, 5 July 2022

Application for approval of the QUEEN CONSTRUCTIONS 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 QUEEN CONSTRUCTIONS 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 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 12 July 2022. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in the matter were Queen Constructions Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The nature of the dispute was the application for approval of a proposed enterprise agreement, specifically the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The case was heard by the Fair Work Commission, which is the Australian workplace relations tribunal. The Commission was tasked with determining whether the proposed agreement met the necessary requirements to be approved and registered.

The primary legal issues before the Commission involved whether the agreement complied with the relevant provisions of the Fair Work Act 2009, including provisions relating to procedural fairness, good faith bargaining, and the protection of employees' rights and interests. The Commission had to consider if the agreement was made in good faith, if it was the product of genuine bargaining, and if it provided fair and reasonable terms for the employees. Additionally, the Commission needed to ensure that the agreement met the procedural requirements for approval, including whether proper notice was given and if employees had an opportunity to be heard.

In reaching its decision, the Commission examined the evidence and submissions presented by both parties. The Commission found that the agreement was made in good faith and was the product of genuine bargaining. The terms of the agreement were considered fair and reasonable, taking into account the specific nature of the industry and the needs of the employees. The Commission also determined that the procedural requirements for approval had been met, including proper notice and an opportunity for employees to be heard. As a result, the Commission approved the proposed agreement, finding it met all necessary requirements for registration.

The final orders of the Commission were to approve and register the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023 as a registered agreement under the Fair Work Act 2009. The agreement was to be in effect from 1 July 2020 and would apply to employees working in the specified industry sectors. The Commission's decision provided clarity and certainty for both parties and ensured that the agreement would provide fair and reasonable terms for employees while also meeting the legal requirements for approval.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established