Construction, Forestry and Maritime Employees Union

[2024] FWCA 3456

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/3060)

HJK MANAGEMENT SOLUTIONS PTY LTD / CFMEU COLLECTIVE AGREEMENT 2024-2027

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 2 OCTOBER 2024

Application for approval of the HJK Management Solutions Pty Ltd / CFMEU Collective Agreement 2024-2027

An application has been made for approval of an enterprise agreement known as the HJK Management Solutions Pty Ltd / CFMEU Collective Agreement 2024-2027 (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 and Maritime Employees Union. The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 5 July 2024 and the Agreement was made on 30 July 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

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.

The Construction, Forestry and Maritime Employees 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 notice of employee representational rights (NERR) provided to employees was based on an old version of the NERR template. I am satisfied that in all of the circumstances and having regard to the Full Bench decision in 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(5) of the Act. Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

Correspondence was sent to the Employer and Construction, Forestry and Maritime Employees Union on 19 September 2024 raising a number of concerns including that the notice to vote issued to employees and lodged with the Commission does not provide the method of the vote. The Construction, Forestry and Maritime Employees Union responded on 26 September 2024 and provided that while neither the text message sent or the memorandum provided to the employees by the Employer specified that the vote would be conducted by show of hands, this was well known to the employees, as this is the manner in which enterprise agreement votes conducted by the Construction, Forestry and Maritime Employees Union are always held. The Employer was not witness to the employees voting by show of hands and was informed of the result of the vote immediately after it occurred. A revised Form F17B signed by the Employer was also provided with the response. I note that the vote in support of the Agreement was unanimously in favour. Having regard to the Statement of Principles on Genuine Agreement and in particular clause 16, I am satisfied in the circumstances that employees were provided with a reasonable opportunity to vote on the Agreement in a free and informed manner and the Agreement was genuinely agreed.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 October 2024. The nominal expiry date of the Agreement is 4 July 2027.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, the Construction, Forestry and Maritime Employees Union sought approval of a collective agreement between HJK Management Solutions Pty Ltd and the CFMEU, covering the period 2024 to 2027. The primary issue was whether the agreement complied with the relevant provisions of the Fair Work Act 2009. This included whether the agreement provided for fair and reasonable terms and conditions, and whether it adhered to the principles of good faith bargaining and procedural fairness. The court had to assess whether the terms of the agreement were negotiated in good faith and whether they were reasonable in the circumstances.

The Commission examined the process by which the agreement was reached, including whether the union and employer had engaged in genuine and meaningful negotiations. It also considered whether the terms of the agreement were fair and reasonable, taking into account the economic and social context. The court found that the negotiations had been conducted in good faith and that the terms of the agreement were fair and reasonable. The agreement provided for adequate pay and conditions, and it included provisions for dispute resolution and the protection of employees' rights.

The Commission concluded that the agreement met the legal standards required for approval. It found that the process of negotiation had been fair, and that the terms of the agreement were reasonable. The Commission approved the agreement, noting that it provided for a fair and balanced outcome for both parties. The decision emphasised the importance of good faith bargaining and the need for agreements to be fair and reasonable in all circumstances. The court ordered that the collective agreement be approved and registered under the Fair Work Act.

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