Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 1855

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/1644)

VICTORIAN DRILLING SERVICES PTY LTD T/AS BROWNS PILING AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS PILING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	melbourne, 8 JUNE 2022

Application for approval of the VICTORIAN DRILLING SERVICES PTY LTD T/As BROWNS PILING and the CFMEU (Victorian Construction and General Division) Subcontractors Piling Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the VICTORIAN DRILLING SERVICES PTY LTD T/As BROWNS PILING and the CFMEU (Victorian Construction and General Division) Subcontractors Piling 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 15 June 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 Fair Work Commission heard an application for the approval of the Victorian Drilling Services Pty Ltd t/as Browns Piling and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Piling Enterprise Agreement 2020-2023. The dispute involved the terms and conditions of employment for workers in the piling industry in Victoria. The Commission was required to determine whether the proposed enterprise agreement met the legal criteria for approval under the Fair Work Act 2009.

The primary legal issues before the Commission were whether the proposed agreement complied with the procedural and substantive requirements of the Act. Procedurally, the Commission had to assess if the agreement was made in accordance with the mandatory bargaining procedures. Substantively, the Commission needed to ensure that the agreement did not discriminate against any person on the basis of sex, family responsibilities, pregnancy, parental leave, marital status, age, disability, race, colour, nationality, political opinion, religion, or industrial activity. Furthermore, the Commission needed to confirm that the agreement provided for appropriate mechanisms for the resolution of disputes and did not undermine the operation of any industrial law.

The Commission found that the agreement was procedurally valid, as it was made following the mandatory bargaining procedures as outlined in the Act. The Commission also determined that the agreement did not contain any discriminatory provisions and provided for adequate dispute resolution mechanisms. Additionally, the Commission confirmed that the agreement did not undermine any existing industrial law. As a result, the Commission approved the proposed enterprise agreement.

The Fair Work Commission approved the Victorian Drilling Services Pty Ltd t/as Browns Piling and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Piling Enterprise Agreement 2020-2023, effective from the date of the decision. The agreement now serves as a legally binding contract between the employer and the union, governing the terms and conditions of employment for workers in the piling industry in Victoria for the specified period.

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