Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 1933

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/1750)

JAWS 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, 15 JUNE 2022

Application for approval of the JAWS 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 JAWS 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 22 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 case involved an application for approval of an enterprise agreement between JAWS CIVIL PTY LTD and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The application was made to the Fair Work Commission, Australia's workplace relations tribunal. The nature of the dispute was to determine whether the agreement met the legal standards and requirements for approval under the Fair Work Act 2009.

The legal issues before the court were whether the agreement had been made freely and fairly, without any coercion, and whether it met the statutory criteria for approval, including the provision of a safety net of minimum wages and conditions. Additionally, the court had to consider whether the agreement provided for appropriate mechanisms for the resolution of disputes between the parties.

In reaching its decision, the court examined the processes through which the agreement was negotiated and the documentation provided by the parties. It was satisfied that the agreement had been made freely and fairly, and that it met all statutory criteria for approval. The court found that the agreement provided a safety net of minimum wages and conditions and included provisions for the resolution of disputes. Consequently, the court approved the enterprise agreement.

The final orders of the court were that the application for approval of the JAWS CIVIL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023 was granted. The agreement was approved and registered under the Fair Work Act 2009, effective from the date of the decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established