Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 1341

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/1056)

TDM EARTHWORKS PTY LTD and the CFMEU (Victorian Construction and General Division) SubcontractorsEarthmoving, Excavation and Drainage Enterprise Agreement 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 20 APRIL 2022

Application for approval of the TDM EARTHWORKS 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 TDM EARTHWORKS 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 27 April 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

In the case involving the Construction, Forestry, Maritime, Mining and Energy Union and TDM Earthworks Pty Ltd, the primary issue was the approval of a specific enterprise agreement between the union and the company. The Fair Work Commission was tasked with examining the application for the approval of the TDM Earthworks Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The focus of the dispute was to determine whether the agreement met the necessary standards and requirements set out under the Fair Work Act 2009.

The legal issues that the Commission needed to resolve involved assessing whether the agreement provided for the appropriate minimum entitlements, if it adhered to the procedural fairness principles, and if the agreement contained any provisions that would negatively impact the employees' rights or the employer's obligations. The Commission also had to consider if the agreement was fairly negotiated and if the union had genuinely represented the interests of the employees in the agreement.

In delivering its decision, the Commission found that the agreement met the necessary requirements under the Fair Work Act 2009. It was determined that the agreement provided for the appropriate minimum entitlements and adhered to the procedural fairness principles. Furthermore, the Commission was satisfied that the agreement did not contain any provisions that would negatively impact the employees' rights or the employer's obligations. The Commission also found that the agreement was fairly negotiated and that the union had genuinely represented the interests of the employees in the agreement. Consequently, the Commission approved the application for the TDM Earthworks Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023.

The final orders of the Commission were that the agreement be approved as a registered agreement under the Fair Work Act 2009. This approval would make the agreement legally binding on the parties involved and would ensure that the terms and conditions outlined in the agreement would govern the employment relationship between the employer and the employees covered by the agreement.

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