Construction, Forestry and Maritime Employees Union

[2024] FWCA 3002

[2024] FWCA 3002

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/2610)

SCENTRE DESIGN AND CONSTRUCTION PTY LIMITED / CFMEU COLLECTIVE AGREEMENT 2024-2027

Building, metal and civil construction industries
DEPUTY PRESIDENT BELL	MELBOURNE, 15 AUGUST 2024

Application for approval of the Scentre Design and Construction Pty Limited / CFMEU Collective Agreement 2024-2027.

1. An application has been made for approval of an enterprise agreement known as the Scentre Design and Construction Pty Limited / CFMEU Collective Agreement 2024-2027 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the Construction, Forestry and Maritime Employees Union (CFMEU). The Agreement is a single enterprise agreement.

1. The notification time for the Agreement under s.173(2) was 29 May 2024 and the Agreement was made on 28 June 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.[1]

1. Through correspondence with chambers, I raised concerns with the declaration provided by the employer that accompanied the application. In summary, my concerns related to detail in that declaration that was not evident from the supporting documentation or related to material that the employer could not attest to. In the latter category, the employer declared that there was a valid vote by employees, undertaken by a ‘show of hands’ and under the supervision of a ‘Bargaining Representative’ without the employer being present. The ‘Bargaining Representative’ was not identified and, as I raised in correspondence with the parties, it was unclear to me how the employer could attest to the conduct or outcome of the vote in circumstances where it was ‘show of hands’ and the employer was not present. The employer declaration was also unclear as to the timing of the explanation given to employees about the terms and effect of the Agreement they were being asked to vote upon, as the declaration indicated that the explanation to employees was potentially given at the same time as a vote commenced, which was 12.30pm on 28 June 2024.

1. In response to my request for further information, I received a detailed submission from the NSW State President of the CFMEU Construction division, Rita Mallia. It is not necessary to set out the detail of that submission, but I have had regard to it and accept it. In relation to the explanation given to employees, there was a meeting commencing at 12.30pm on 28 June 2024 and concluding at about 2.40pm with the vote. Ms Mallia primarily took the employees through the Agreement, highlighting changes from the previous enterprise agreement. Also present to provide explanations were the State Secretary of the CFMEU, and two Assistant State Secretaries. The meeting also included a presentation from a representative of the Incolink Redundancy Fund and an income protection insurer. I note that the Agreement is a ‘rollover’ enterprise agreement, albeit with improved terms from the enterprise agreement it was replacing.

1. Having regard to the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer. However, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

1. The CFMEU, 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.

1. While the Agreement states it shall apply from the date of lodgement, s.54(1)(a) of the Act relevantly states that an enterprise agreement approved by the Fair Work Commission operates from 7 days after the agreement is “approved”. The Agreement was approved on 15 August 2024 and, in accordance with s.54, will operate from 22 August 2024. The nominal expiry date of the Agreement is 4 July 2027.

DEPUTY PRESIDENT

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements which are not applicable to the present application.

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