Construction, Forestry and Maritime Employees Union

[2024] FWCA 1101

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/799)

BINGIN HOLDINGS PTY LTD T/AS SUPERIOR FENCES GROUP AND CFMEU UNION COLLECTIVE AGREEMENT 2023–2027

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 28 MARCH 2024

Application for approval of the Bingin Holdings Pty Ltd T/As Superior Fences Group and CFMEU Union Collective Agreement 2023–2027

An application has been made for approval of an enterprise agreement known as the Bingin Holdings Pty Ltd T/As Superior Fences Group 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 the 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 7 February 2024 and the Agreement was made on 8 March 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 4 April 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

In the matter of an application for approval of the Bingin Holdings Pty Ltd T/As Superior Fences Group and Construction, Forestry and Maritime Employees Union Collective Agreement 2023–2027, the application was before the Fair Work Commission. The applicant, Bingin Holdings, sought approval of the proposed collective agreement, which was negotiated with the union. The union, in turn, supported the approval of the agreement, emphasising its benefits for the employees. The dispute centred on whether the collective agreement met the statutory requirements for approval under the Fair Work Act 2009.

The legal issues before the Commission involved assessing whether the agreement complied with the provisions of the Act, particularly sections relating to good faith bargaining, the inclusion of appropriate terms and conditions, and the overall fairness of the agreement. The Commission had to determine if the agreement reflected a genuine attempt at good faith bargaining and if it contained terms that were fair and reasonable. Additionally, the Commission needed to consider whether the agreement met the statutory requirements for a good-faith bargaining period and if the union had represented the employees effectively during the negotiation process.

The Commission carefully examined the evidence presented by both parties, including the negotiation process, the terms of the agreement, and the union's representation of the employees. The Commission concluded that the agreement reflected good faith bargaining and contained terms that were fair and reasonable. The evidence showed that the union had effectively represented the employees and that the agreement met the statutory requirements for approval. Therefore, the Commission approved the collective agreement, acknowledging the benefits it provided to both the employer and the employees.

The Fair Work Commission approved the Bingin Holdings Pty Ltd T/As Superior Fences Group and Construction, Forestry and Maritime Employees Union Collective Agreement 2023–2027, recognising it as meeting the statutory requirements under the Fair Work Act 2009. The decision underscored the importance of good faith bargaining and fair terms in collective agreements. The approval was based on the evidence of genuine negotiation efforts and the overall fairness of the agreement terms.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established