Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 1996

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/1832)

LOAM 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 MATHESON	SYDNEY, 21 JUNE 2022

Application for approval of the LOAM 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 LOAM 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 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 28 June 2022. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

[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) sought approval for the LOAM CIVIL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The application was heard by the Fair Work Commission, which was required to decide whether the agreement met the necessary legal criteria for approval. The Commission had to determine if the agreement was genuinely negotiated, did not contain any unfair terms, and if it provided adequate protections for employees.

The primary legal issues the Commission had to address were whether the agreement was genuinely negotiated between the parties, if it contained any unfair terms, and whether it provided adequate protections for employees. The Commission examined the negotiation process to ensure it was genuine and not merely a formality. It also assessed the terms of the agreement to identify any provisions that might be considered unfair, which could potentially disadvantage employees. Additionally, the Commission evaluated whether the agreement offered sufficient protections for the employees, ensuring that it met the standards set out in the Fair Work Act.

After carefully reviewing the evidence and the arguments presented, the Commission concluded that the agreement met the necessary criteria for approval. The Commission found that the negotiation process was genuine, and no unfair terms were present in the agreement. Furthermore, the agreement provided adequate protections for employees, ensuring it complied with the Fair Work Act. Consequently, the Commission approved the LOAM CIVIL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023.

The Fair Work Commission approved the LOAM CIVIL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. This decision recognised the agreement as meeting the necessary criteria for approval, including genuine negotiation, the absence of unfair terms, and adequate employee protections.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established