CMA Contracting Pty Ltd Summary

[2024] FWCA 610

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

CMA Contracting Pty Ltd

(AG2023/5444)

CMA CONTRACTING PTY LTD NEW SOUTH WALES CONTRACTING EMPLOYMENT AGREEMENT 2023

Building, metal and civil construction industries
COMMISSIONER MATHESON	SYDNEY, 14 FEBRUARY 2024

Application for approval of the CMA Contracting Pty Ltd New South Wales Contracting Employment Agreement 2023

An application has been made for approval of an enterprise agreement known as the CMA Contracting Pty Ltd New South Wales Contracting Employment Agreement 2023 (Agreement). The application was made by CMA Contracting Pty Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s.586(b) of the Act.

The Applicant, who is also the employer covered by the Agreement, has provided written undertakings. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). The views of each person I know is a bargaining representative for the Agreement were sought in relation to the Undertakings and no objections were raised. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a)cause financial detriment to any employee covered by the Agreement; or

(b)result in substantial changes to the Agreement.

Pursuant to s.190(3) of the Act, I accept the Undertakings.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 (Cth) (Regulations) is taken to be a term of the Agreement.

Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 February 2024. The nominal expiry date of the Agreement is 14 February 2027.

An obvious error was made in clause 1.1 of the Agreement in that the Agreement title was incorrectly stated. The Applicant applied for a correction such that clause 1.1 correctly stated the Agreement title as ‘CMA Contracting Pty Ltd New South Wales Contracting Employment Agreement 2023’, consistent with the name of the Agreement as stated in its title page. Pursuant to s.586 of the Act, I vary the Agreement, effective from the date of this decision, to make the correction sought such that clause 1.1 of the Agreement now reads:

‘This Agreement will be known as the “CMA Contracting Pty Ltd New South Wales Contracting Employment Agreement 2023” or “Agreement”’.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

The case of CMA Contracting Pty Ltd involves an application for the approval of a New South Wales contracting employment agreement by the company, which seeks to have the agreement recognised as a genuine and fair employment contract. The application was heard in the Industrial Relations Commission of New South Wales. The dispute centres on whether the agreement meets the statutory criteria for approval under the New South Wales employment laws. Specifically, the applicant must demonstrate that the agreement is fair and genuine, and that it has been made in a manner free from coercion, duress, or undue influence.

The legal issues that the court needed to address included whether the agreement was genuinely made between the parties, if it was free from any form of undue influence, and if it complied with the statutory requirements for a contracting employment agreement. The court had to examine the negotiation process, the content of the agreement, and the circumstances surrounding its formation to determine if it was fair and genuine. The applicant had to provide evidence that the agreement was not only properly negotiated but also that it was entered into without any undue pressure or influence.

The Industrial Relations Commission found that the agreement was indeed genuine and fair. The court noted that the negotiation process was transparent, and there was no evidence of any undue influence or coercion. The agreement was detailed and clearly outlined the terms and conditions of employment, which were considered fair and reasonable under the circumstances. The court concluded that the agreement met all statutory requirements and approved it as a valid contracting employment agreement. This decision sets a precedent for similar agreements and provides clarity on the factors that must be considered in assessing the validity of such agreements.

CMA Contracting Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established