Construction, Forestry and Maritime Employees Union Summary

[2024] FWCA 2040

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/1827)

DELTA PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2023–2027

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 6 JUNE 2024

Application for approval of the Delta Pty Ltd and CFMEU Union Collective Agreement 2023–2027

An application has been made for approval of an enterprise agreement known as the Delta Pty Ltd and CFMEU Union Collective Agreement 2023–2027 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by 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 8 April 2024 and the Agreement was made on 21 May 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 Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 June 2027. 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 Construction, Forestry and Maritime Employees Union applied to the Fair Work Commission for approval of a collective agreement between Delta Pty Ltd and the union. The agreement, spanning from 2023 to 2027, outlines the terms and conditions of employment for employees in the construction industry. The dispute arose over several contentious clauses within the agreement that the employer argued were either unfair or beyond the scope of the Commission's approval powers. The Fair Work Commission was tasked with determining whether the agreement met the criteria for approval under the Fair Work Act 2009.

The court examined whether the disputed clauses were genuinely intended to be part of the agreement, whether they were genuinely intended to be binding, and whether they contravened the "better off overall test" under the Act. Additionally, the court needed to decide if certain provisions fell outside the scope of the Commission's approval powers. The legal issues primarily revolved around the interpretation of the agreement's terms and the extent to which the Commission could intervene to ensure the agreement met statutory standards.

The Fair Work Commission found that the disputed clauses were genuinely intended to be part of the agreement and were genuinely intended to be binding. However, some provisions were deemed to contravene the better off overall test, as they did not provide employees with sufficient benefits to outweigh the potential disadvantages. The court also determined that certain provisions, while contentious, fell within the scope of the Commission's approval powers. As a result, the Commission ordered modifications to specific clauses to ensure compliance with the statutory requirements. The agreement was ultimately approved with the stipulated changes.

Construction, Forestry and Maritime Employees Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established