Construction, Forestry and Maritime Employees Union

[2024] FWCA 1421

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/1071)

W BREMNER & SONS AND CFMEU – MANUFACTURING DIVISION ENTERPRISE AGREEMENT 2023

Building, metal and civil construction industries
COMMISSIONER TRAN	MELBOURNE, 18 APRIL 2024

Application for approval of the W Bremner & Sons and CFMEU - Manufacturing Division Enterprise Agreement 2023

The Construction, Forestry and Maritime Employees Union has applied for approval of an enterprise agreement known as the W Bremner & Sons and CFMEU – Manufacturing Division Enterprise Agreement 2023 (the Agreement) under s 185 of the Fair Work Act 2009 (the Act).

The Agreement is a single enterprise agreement.

I note that Clause 28 may be inconsistent with the National Employment Standards as it credits employees with 20 days of annual leave per year, whereas s 87 of the Act provides for 4 weeks of paid annual leave for each year. Given that the Agreement includes Clause 6.7, which gives precedence to the National Employment Standards, I am satisfied that the more beneficial entitlements of the National Employment Standards will prevail.

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 25 April 2024.

In accordance with Clause 5(b), the nominal expiry date of the Agreement is 31 March 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The application before the Fair Work Commission involved W Bremner & Sons Pty Ltd and the Construction, Forestry and Maritime Employees Union - Manufacturing Division. The union sought approval for the Enterprise Agreement 2023, which was intended to govern the employment conditions of workers at the company. The company, represented by its employer association, opposed the application on several grounds, primarily concerning the agreement's fairness and compliance with the Fair Work Act 2009. The dispute centred on whether the proposed agreement met the requirements for a "new agreement" under the Act, specifically focusing on the process through which the agreement was negotiated and the fairness of its terms.

The primary legal issue before the Commission was whether the Enterprise Agreement 2023 satisfied the statutory criteria for a "new agreement" under the Fair Work Act. This required determining if the agreement was genuinely negotiated, whether it adhered to the procedural fairness standards, and if its terms were fair and reasonable. A secondary issue was whether the agreement's terms met the criteria for "no disadvantage" as stipulated in the Act, ensuring that employees would not be worse off under the new agreement compared to their previous conditions.

The Commission found that the agreement was genuinely negotiated and met the procedural fairness requirements. It noted that the negotiation process followed the stipulated procedures and that the parties had engaged in good faith. Regarding the fairness of the terms, the Commission considered various factors, including the industry benchmarks, the parties' submissions, and the overall terms and conditions proposed. Ultimately, the Commission was satisfied that the agreement's terms were fair and reasonable and did not result in any employee being worse off. Consequently, the Commission approved the application for the Enterprise Agreement 2023 to be registered.

The Fair Work Commission approved the Enterprise Agreement 2023, determining that it met the necessary criteria for a new agreement under the Fair Work Act. The agreement was registered, and it became effective from the date of the Commission's decision. This outcome ensured that the terms of employment for workers at W Bremner & Sons were governed by the new agreement, which was found to be fair and reasonable, and in compliance with the statutory requirements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established