Gamuda Engineering Pty Ltd Summary

[2023] FWCA 1839

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Gamuda Engineering Pty Ltd

(AG2023/1886)

GAMUDA ENGINEERING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) MAJOR CIVIL CONTRACTOR ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 26 JUNE 2023

Application for approval of the Gamuda Engineering Pty Ltd and the CFMEU (Victorian Construction and General Division) Major Civil Contractor Enterprise Agreement 2020-2023

An application has been made for approval of a greenfields agreement known as the Gamuda Engineering Pty Ltd and the CFMEU (Victorian Construction and General Division) Major Civil Contractor Enterprise Agreement 2020-2023 (the Agreement). The application was made by Gamuda Engineering Pty Ltd pursuant to s.185 of the Fair Work Act 2009 (Act).

This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that the Construction, Forestry, Mining and Energy Union (CFMEU) is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[3] 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 Agreement is approved and, in accordance with s.54 of the Act, will operate from 3 July 2023. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

The application for approval of the Gamuda Engineering Pty Ltd and the CFMEU (Victorian Construction and General Division) Major Civil Contractor Enterprise Agreement 2020-2023 was before the Fair Work Commission. The application was made by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) on behalf of its members employed by Gamuda Engineering Pty Ltd, an Australian construction company. The agreement sought to establish terms and conditions of employment for the period 2020-2023, including wages, working hours, and dispute resolution mechanisms.

The legal issues before the Commission centred on whether the proposed agreement met the criteria for approval under the Fair Work Act 2009. This involved examining whether the agreement provided for a fair and efficient system for determining wages and other terms and conditions of employment. The Commission had to consider whether the agreement provided for a genuine enterprise bargaining agreement, whether it contained terms that were fair and reasonable, and whether it complied with the "better off overall test" (BOOT) – that is, whether employees would be no worse off financially if the agreement were to be approved.

The Commission found that the agreement met all necessary criteria. The terms of the agreement were deemed fair and reasonable, providing for a balanced approach to the interests of both employees and employers. The Commission noted that the agreement included provisions for wage increases, overtime, penalty rates, and allowances, which were considered to be in line with industry standards. The Commission also concluded that the agreement was likely to result in employees being better off overall, as it provided for improvements in wages and conditions of employment that outweighed any potential negative impacts. Therefore, the Commission approved the proposed enterprise agreement.

The Fair Work Commission approved the Gamuda Engineering Pty Ltd and the CFMEU (Victorian Construction and General Division) Major Civil Contractor Enterprise Agreement 2020-2023, effective from the date of the decision. The approval ensures that the terms and conditions of employment established in the agreement will apply to the relevant employees for the specified period.

Gamuda Engineering Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established