Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 1045

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/769)

ONTRACK EXCAVATION GROUP 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, 29 MARCH 2022

Application for approval of the ONTRACK EXCAVATION GROUP 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 ONTRACK EXCAVATION GROUP 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 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 5 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 Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union applied for approval of a new enterprise agreement between ONTRACK Excavation Group Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The agreement was to replace an existing enterprise agreement and was negotiated between the union and the employer. The union sought approval for the agreement under section 230 of the Fair Work Act 2009.

The primary legal issue before the Commission was whether the new enterprise agreement met the requirements for approval under the Fair Work Act. This included examining if the agreement was in the best interests of the employees, whether it complied with the provisions of the Act, and if it was negotiated in good faith. The Commission also needed to determine if the agreement provided fair and reasonable terms and conditions of employment for the employees covered by the agreement.

The Commission found that the agreement was in the best interests of the employees, as it provided them with fair and reasonable terms and conditions of employment. The agreement was also compliant with the Fair Work Act, and it was evident that it was negotiated in good faith. The Commission was satisfied that the agreement met all the necessary criteria for approval and that it would provide a fair and effective means of determining the employees' terms and conditions of employment. Accordingly, the Commission approved the new enterprise agreement.

The Fair Work Commission approved the ONTRACK Excavation Group Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023, effective from 1 January 2020. The agreement will now apply to the employees covered by it, and it will replace the previous enterprise agreement. The Commission's decision ensures that the employees will continue to have fair and reasonable terms and conditions of employment, as well as a fair and effective means of determining their employment terms.

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