Construction, Forestry and Maritime Employees Union

[2024] FWCA 1965

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/1650)

MELCHOR CONTRACTING PTY LTD PERDAMAN CERES PROJECT GREENFIELDS AGREEMENT 2024

Building, metal and civil construction industries
DEPUTY PRESIDENT BEAUMONT	PERTH, 30 MAY 2024

Application for approval of the Melchor Contracting Pty Ltd Perdaman Ceres Project Greenfields Agreement 2024

An application has been made for approval of a greenfields agreement known as the Melchor Contracting Pty Ltd Perdaman Ceres Project Greenfields Agreement 2024 (Agreement). The application was made by the Construction, Forestry and Maritime Employees Union (CFMEU) pursuant to s 185 of the Fair Work Act 2009 (the Act).

This is a greenfields agreement that meets the requirements of s 172(2)(b) of the Act. I am satisfied that each of the requirements of ss 186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s 187(5)(a) of the Act, I am satisfied that the CFMEU, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU), are entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

Pursuant to s 53(2)(b) of the Act, I note the Agreement was made with the CFMEU, CEPU and the AMWU, and that the Agreement covers these organisations.

Whilst there are several clauses of the Agreement, which are likely inconsistent with the National Employment Standards (NES), the NES precedence clause at clause 4 of the Agreement addresses those issues. Those issues are as follows:

(a)clause 26(6) of the Agreement provides that notice for personal leave should be provided, other than in extraordinary circumstances, within one hour of commencement of the absence. This is likely more onerous than the personal leave notification requirements in s 107 of the Act.

(b)the entitlement to compassionate leave provided by clause 28 of the Agreement does not appear to be triggered after the stillbirth of a child of the employee or a member of the employee’s immediate family or household as provided for in s 105 (1)(b) of the Act, or after the employee or the employee’s spouse or de facto partner has a miscarriage as provided for in s 105(1)(c) of the Act.
(c)clause 27(4) of the Agreement provides that the employer and a majority of employees may agree to substitute a nominated public holiday to another day. This appears to be inconsistent with s 115 (3) of the Act, which provides that such substitution may only occur by agreement between the employer and an employee.
(d)clause 32(18) of the Agreement provides an abandonment clause. This clause does not specifically provide that employees deemed to have abandoned their employment in accordance with this clause will be afforded their minimum notice of termination entitlement as provided in s 117(3) of the Act.

In light of clause 4 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. I also note that by virtue of s 55 of the Act, an enterprise agreement must not exclude the NES or any provisions of the NES and s 56 provides that a term of an enterprise agreement has no effect to the extent that it contravenes s 55.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 6 June 2024. The nominal expiry date of the Agreement is 9 May 2028.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, the Construction, Forestry and Maritime Employees Union applied for the approval of the Melchor Contracting Pty Ltd Perdaman Ceres Project Greenfields Agreement 2024. The agreement was made between the Union and the company, aiming to regulate employment terms for workers involved in a specific project. The Union argued that the agreement was fair and met all necessary requirements, while the company expressed concerns regarding certain provisions of the agreement.

The primary legal issues the Commission had to address were whether the agreement was a genuine enterprise agreement, whether it complied with the Fair Work Act 2009, and whether it met the requirements of a simple, direct, and understandable agreement. The Commission also had to consider the company's objections and determine whether the agreement was appropriate for the employees' needs.

After reviewing the submissions and evidence from both parties, the Commission found that the agreement was genuine and met the necessary criteria. The Commission held that the agreement was not overly complex, was sufficiently comprehensive, and adequately addressed the employees' needs. It was also determined that the agreement complied with the requirements of the Fair Work Act 2009. Consequently, the Commission approved the Melchor Contracting Pty Ltd Perdaman Ceres Project Greenfields Agreement 2024.

The Commission's final order was that the agreement be approved and registered under the Fair Work Act 2009. The agreement would now be legally binding on both the Union and the company, governing the employment terms for the workers involved in the project. The company was required to implement the agreement, and the Union was entitled to enforce it on behalf of its members.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established