Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 1084

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/806)

ECODYNAMICS SERVICES PTY LTD AS TRUSTEE FOR ECODYNAMICS SERVICES TRUST AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS LANDSCAPE CONSTRUCTION ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 31 MARCH 2022

Application for approval of the ECODYNAMICS SERVICES PTY LTD AS TRUSTEE FOR ECODYNAMICS SERVICES TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Landscape Construction Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the ECODYNAMICS SERVICES PTY LTD AS TRUSTEE FOR ECODYNAMICS SERVICES TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Landscape Construction 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 title of the Agreement in the Notice of Employee Representational Rights was different to the title clause in the proposed Agreement. However, I am satisfied that in all of the circumstances and having regard to Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[1], this constitutes a minor procedural or technical error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.
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 7 April 2022. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of a new enterprise agreement between EcoDynamics Services Pty Ltd, as trustee for EcoDynamics Services Trust, and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Landscape Construction Enterprise Agreement 2020-2023. The agreement, which was proposed to cover a three-year period from 2020 to 2023, aimed to regulate the terms and conditions of employment for landscape construction workers within the relevant industry.

The primary legal issue before the Commission was whether the proposed enterprise agreement met the necessary criteria for approval under the Fair Work Act 2009. This included assessing whether the agreement provided for the terms and conditions of employment, whether it complied with the "better off overall test", and whether it adhered to the various provisions of the Act that govern the content of such agreements. Additionally, the Commission had to consider whether the agreement was free from any unlawful content or any provisions that would be detrimental to the parties involved.

In determining whether the proposed agreement should be approved, the Commission examined the content of the agreement in detail. It assessed the provisions relating to wages, working hours, leave entitlements, and other employment conditions to ensure that they met the requirements of the Act. The Commission also evaluated the agreement against the "better off overall test", which required that the agreement should be at least as good as the applicable award or existing agreement, and should not unfairly disadvantage any party. Upon review, the Commission found that the proposed agreement met all the necessary criteria and did not contain any unlawful provisions. Consequently, the Commission approved the proposed agreement, recognising its compliance with the Fair Work Act and its potential benefits for the parties involved.

The Fair Work Commission approved the EcoDynamics Services Pty Ltd, as trustee for EcoDynamics Services Trust, and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Landscape Construction Enterprise Agreement 2020-2023, effective from the date of the decision. This approval ensures that the terms and conditions of employment for landscape construction workers within the relevant industry are governed by this enterprise agreement, providing a clear and agreed-upon framework for the parties to follow.

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