Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 1832

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/1614)

DIG NOW EXCAVATIONS 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, 6 JUNE 2022

Application for approval of the DIG NOW EXCAVATIONS 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 DIG NOW EXCAVATIONS 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 13 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 applicant, DIG NOW Excavations Pty Ltd, sought approval of an enterprise agreement with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The dispute was heard by the Fair Work Commission. The central issue was whether the agreement complied with the relevant provisions of the Fair Work Act 2009, particularly sections 226 and 231, which govern the approval of enterprise agreements. The applicant argued that the agreement was fairly and properly negotiated and met all legislative requirements.

The Commission examined the negotiation process and the content of the agreement. It considered whether there were any procedural defects in the negotiation process and whether the agreement was free from any prohibited content. The Commission also assessed whether the agreement provided for the terms and conditions of employment in a manner consistent with the Fair Work Act. After reviewing the evidence and submissions from both parties, the Commission determined that the agreement was fairly and properly negotiated and did not contain any prohibited content. The Commission found that the agreement complied with the requirements of the Act.

The Fair Work Commission approved the DIG NOW Excavations Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The Commission issued a certificate of registration for the agreement, which will be in effect from the date of the decision. The parties are now bound by the terms of the approved agreement, which sets out the terms and conditions of employment for the employees covered by the agreement. The final orders included the approval of the enterprise agreement and the issuance of a certificate of registration.

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