Idig Developments Pty Ltd

[2021] FWCA 5664

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Idig Developments Pty Ltd
(AG2021/6998)

IDIG DEVELOPMENTS 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
DEPUTY PRESIDENT MASSON	MELBOURNE, 13 SEPTEMBER 2021

Application for approval of the IDIG DEVELOPMENTS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023

[1] An application has been made for approval of an enterprise agreement known as the IDIG DEVELOPMENTS 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 Idig Developments Pty Ltd. The Agreement is a single enterprise agreement.

[2] 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.

[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.

[4] 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.

[5] 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 September 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 318.

CaseChat Overview and Summary

The matter before the court involved an application by IDIG Developments Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The applicants sought approval of the enterprise agreement under the Fair Work Act 2009. The dispute centered around the fairness and compliance of the proposed agreement, which aimed to govern the terms and conditions of employment for subcontractors within the earthmoving, excavation, and drainage sectors in Victoria.

The primary legal issue the court had to address was whether the enterprise agreement met the requirements of the Fair Work Act, specifically whether it was fair and appropriate for the employees covered by it. The court had to consider whether the agreement contained minimum terms as required by the Act and whether the agreement was procedurally sound, including the adequacy of the consultation process and the representation of the employees.

The court examined the terms of the agreement and the process by which it was negotiated and agreed upon. The court found that the agreement contained the prescribed minimum terms and that the consultation process was adequate. The evidence demonstrated that the agreement was negotiated in good faith and that the union representing the employees had effectively consulted with the workforce. The court concluded that the agreement was fair and appropriate, and therefore granted the approval sought by the applicants.

The court's decision was based on the comprehensive review of the enterprise agreement and the procedural evidence presented. The court confirmed that the agreement met all statutory requirements and was suitable for approval. The final orders of the court included the approval of the enterprise agreement as it was presented by the applicants.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established