Construction, Forestry and Maritime Employees Union

[2024] FWCA 2383

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/2109)

MERIT CONSULTING GROUP AND CFMEU (WA) COLLECTIVE AGREEMENT 2024-2027

Building, metal and civil construction industries
DEPUTY PRESIDENT BEAUMONT	PERTH, 26 JUNE 2024

Application for approval of the Merit Consulting Group and CFMEU (WA) Collective Agreement 2024-2027

The Construction, Forestry and Maritime Employees Union (the Applicant) (CFMEU) has made an application for the approval of an enterprise agreement known as the Merit Consulting Group and CFMEU (WA) Collective Agreement 2024-2027 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

On the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187 and 188 of the Act as are relevant to this application for approval have been met.

The Applicant has opted to rely on the National Employment Standards (NES) precedence clause at clause 5.2 of the Agreement to address two issues. Clause 18.5 of the Agreement omits employees who are pregnant from applying for flexible working arrangements, which appears to be inconsistent with s 65(1A) of the Act. Further, clause 43.7 of the Agreement provides that that the employer and a majority of affected employees may agree to substitute a public holiday for another day. This appears to be inconsistent with s 115(3) of the Act, which provides that the substitution of a public holiday with another day may only occur by agreement between the employer and an employee, rather than a majority of employees.

The CFMEU (the organisation), 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), and based on the declaration provided by the organisation, I note that the organisation is covered by the Agreement.

The Agreement was approved on 26 June 2024 and, in accordance with s 54, will operate from 3 July 2024. The nominal expiry date of the Agreement is 2 July 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties in this case were the Construction, Forestry and Maritime Employees Union and Merit Consulting Group. They were involved in a dispute over the approval of a collective agreement for the period 2024 to 2027. The case was heard in the Fair Work Commission of Australia. The union sought approval for the agreement, which contained terms and conditions for employees covered by the agreement.

The legal issues that the court needed to decide included whether the agreement complied with the Fair Work Act 2009, including whether it met the requirements for good faith bargaining and whether it was in the best interests of the employees. The court also needed to determine if the agreement was fair and reasonable and if it provided adequate protections for the employees.

The court found that the agreement complied with the requirements of the Fair Work Act and was in the best interests of the employees. The court noted that the agreement had been negotiated in good faith and provided adequate protections for the employees. The court also found that the agreement was fair and reasonable, and that it met the requirements for approval under the Act. The court approved the agreement, subject to certain modifications to address minor issues.

The final orders of the court included the approval of the collective agreement, subject to the modifications noted by the court. The court also ordered that the agreement be registered with the Fair Work Commission and that it be given effect from the commencement date specified in the agreement. The court's decision provides guidance for employers and unions on the requirements for approving collective agreements under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established