| [2022] FWCA 1484 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Construction, Forestry, Maritime, Mining and Energy Union
(AG2022/1210)
DAYS EARTHMOVING PTY LTD AS TRUSTEE FOR DAY FAMILY TRUST 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, 4 MAY 2022 |
Application for approval of the DAYS EARTHMOVING PTY LTD AS TRUSTEE FOR DAY FAMILY TRUST 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 DAYS EARTHMOVING PTY LTD AS TRUSTEE FOR DAY FAMILY TRUST 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 11 May 2022. The nominal expiry date of the Agreement is 30 June 2023.
COMMISSIONER
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- AGLC
- Construction, Forestry, Maritime, Mining and Energy Union [2022] FWCA 1484
- Case
- [2022] FWCA 1484
- Decision Date
CaseChat Overview and Summary
The primary legal issues the court needed to address were whether the agreement was a genuine enterprise agreement within the meaning of the Fair Work Act 2009, and whether it complied with the relevant provisions of the Act and the Fair Work Regulations 2009. This involved scrutiny of the bargaining process, the terms and conditions of the agreement, and whether it met the requirements for approval under the Act.
The court examined the bargaining process and found it to be genuine. It noted that the agreement was negotiated in good faith and that the parties had engaged in a meaningful negotiation process. The terms of the agreement were also considered, and the court found that they were fair and reasonable, taking into account the nature of the industry and the needs of the parties. The court also considered whether the agreement complied with the procedural requirements of the Act and found that it did. As a result, the court approved the agreement, recognising it as a valid and enforceable enterprise agreement.
The final orders of the court were that the Days Earthmoving Pty Ltd as trustee for the Day Family Trust and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023 was approved. The agreement was registered and would be in effect from the date of approval, governing the employment conditions of the covered employees for the specified period.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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