Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 1336

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/1034)

VICTORIAN EARTHMOVING SOLUTIONS 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 JOHNS	SYDNEY, 19 APRIL 2022

Application for approval of the VICTORIAN EARTHMOVING SOLUTIONS 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 VICTORIAN EARTHMOVING SOLUTIONS 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 26 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

The applicant, the Construction, Forestry, Maritime, Mining and Energy Union, sought approval for a proposed enterprise agreement between Victorian Earthmoving Solutions Pty. Ltd. and the CFMEU (Victorian Construction and General Division) Subcontractors. The dispute arose from the negotiation and proposed terms of the Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The matter was heard in the Fair Work Commission.

The primary legal issues before the Commission were whether the proposed agreement was in the interests of the employees and whether it complied with the relevant legislative provisions. The Commission had to consider the fairness of the terms and conditions, the negotiation process, and any potential impacts on the employees and the employer. Additionally, the Commission assessed if the agreement met the requirements of the Fair Work Act 2009.

In reaching its decision, the Commission considered the nature of the bargaining, the terms of the proposed agreement, and the submissions from both parties. The Commission noted that the proposed agreement had been negotiated in good faith and that it provided for fair and reasonable terms and conditions. The Commission was satisfied that the agreement was in the best interests of the employees and that it complied with the relevant legislative requirements. The Commission approved the proposed agreement, highlighting that it was fair and balanced, and it met the statutory requirements.

The Fair Work Commission approved the Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023, recognising it as fair and reasonable and compliant with the Fair Work Act 2009. This decision ensures that the agreement will now govern the terms and conditions of employment for the relevant employees within the specified timeframe.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established