Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 1391

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/1113)

PEARSON PLANT 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, 26 APRIL 2022

Application for approval of the PEARSON PLANT 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 PEARSON PLANT 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 3 May 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 matter before the court involved an application for the approval of an enterprise agreement between Pearson Plant Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The Fair Work Commission (FWC) made the application, seeking to have the agreement approved as a registered agreement under the Fair Work Act 2009. The FWC's decision to approve the agreement was contested by Pearson Plant Pty Ltd, which argued that the agreement did not meet the criteria for approval under the Fair Work Act.

The primary legal issue for the court to determine was whether the enterprise agreement complied with the statutory requirements of the Fair Work Act. Specifically, the court had to consider whether the agreement had been made in good faith and whether it contained the essential terms required by the Act. The court also needed to decide if the agreement had been appropriately certified by the FWC as a simplified agreement and if the FWC's decision to approve the agreement was lawful, reasonable, and procedurally fair.

The court found that the agreement was made in good faith and contained the essential terms required by the Fair Work Act. The court also accepted that the FWC had correctly certified the agreement as a simplified agreement and that the FWC's decision to approve the agreement was lawful, reasonable, and procedurally fair. The court concluded that the agreement met all the necessary criteria for approval and that there were no grounds to set aside the FWC's decision. As a result, the court upheld the FWC's decision to approve the enterprise agreement and dismissed the application for review.

The final orders of the court were that the application for review of the FWC's decision to approve the enterprise agreement be dismissed, and that the agreement be approved as a registered agreement under the Fair Work Act. The court found that the FWC had correctly exercised its discretion in approving the agreement and that there were no errors of law or procedural unfairness in the FWC's decision-making process. The court also found that the agreement was a bona fide attempt to resolve the parties' workplace issues and that it met the requirements of the Fair Work Act.

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