Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 2052

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/1935)

STA CIVIL 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 JOHNS	MELBOURNE, 27 JUNE 2022

Application for approval of the STA CIVIL 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 STA CIVIL 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 4 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 Federal Court recently addressed an application for approval of an enterprise agreement between STA Civil Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The agreement, titled the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023, was the subject of a dispute regarding its compliance with the Fair Work Act 2009. The applicant, STA Civil, sought the Court's approval for the proposed agreement, which had been previously certified by the Fair Work Commission as meeting the requirements for a single-employer agreement.

The primary legal issue before the Court was whether the agreement was in the public interest and whether it complied with the provisions of the Fair Work Act. In particular, the Court needed to assess whether the agreement met the requirements of being a "better off overall test" (BOOT), meaning that the overall terms and conditions of the agreement were no less favourable than those previously applicable to the employees. The Court also needed to determine if the agreement complied with the procedural requirements set out in the Act.

The Court found that the agreement satisfied the BOOT requirement and was in the public interest. It determined that the agreement provided for fair and reasonable terms and conditions that were no less favourable than the existing conditions for the employees. The Court further found that the agreement complied with the procedural requirements of the Act, including proper notification and consultation processes. Consequently, the Court approved the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023, and it will now be binding on the parties.

The Court's decision was grounded in its analysis of the agreement's provisions and the evidence provided by both parties. The Court acknowledged the importance of the agreement in setting out clear terms and conditions for the employees and the benefits it brought in terms of certainty and predictability. The Court's approval of the agreement ensures that the parties can now proceed with the implementation of the terms and conditions set out in 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