Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 1060

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/749)

BERMAR EARTHMOVERS 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, 28 MARCH 2022

Application for approval of the BERMAR EARTHMOVERS 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 BERMAR EARTHMOVERS 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 4 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 of the Construction, Forestry, Maritime, Mining and Energy Union, the parties involved were the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Bermar Earthmovers Pty. Ltd. The dispute centred on the approval of the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The matter was heard by the Fair Work Commission, which has jurisdiction to approve such agreements under the Fair Work Act 2009.

The legal issues before the Commission were whether the agreement complied with the statutory requirements set out in the Fair Work Act and the Fair Work Regulations. Specifically, the Commission had to consider whether the agreement met the criteria for being a lawful enterprise agreement, including provisions on minimum entitlements, the process for variations, and the application of the agreement to employees.

The Commission found that the agreement was generally compliant with the statutory requirements. It noted that the agreement provided for minimum entitlements that were not less favourable than those prescribed by the relevant awards and included a process for variations to the agreement. The Commission also found that the agreement was appropriately registered and that the union had followed the necessary procedures in proposing and negotiating the agreement. Consequently, the Commission approved the agreement, noting that while there were some minor issues, these did not detract from the overall compliance and fairness of the agreement.

The final orders of the Commission were that the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023 be approved and registered with the Fair Work Commission. The agreement was set to commence on the date of registration and would apply to the relevant employees of Bermar Earthmovers Pty. Ltd. The Commission also noted that any disputes arising under the agreement could be referred to the Fair Work Commission for resolution.

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