Construction, Forestry and Maritime Employees Union

[2024] FWCA 968

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/644)

INFINITY CONSTRUCTIONS QLD PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2023–2027

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 20 MARCH 2024

Application for approval of the Infinity Constructions Qld Pty Ltd and CFMEU Union CollectiveAgreement 2023–2027

An application has been made for approval of an enterprise agreement known as the Infinity Constructions Qld 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 2 February 2024 and the Agreement was made on 26 February 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, Mining and Energy 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 27 March 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 case before the Fair Work Commission involved an application by the Construction, Forestry and Maritime Employees Union for approval of the Infinity Constructions Qld Pty Ltd and CFMEU Union Collective Agreement 2023–2027. The Union sought to have the agreement recognised as a registered agreement under the Fair Work Act 2009. The application was opposed by Infinity Constructions Qld Pty Ltd, which argued that the agreement contained provisions that were not in the best interests of the employees or the employer. The Commission was required to determine whether the agreement met the statutory criteria for approval, including whether it was in the best interests of the employees and the employer.

The central issue before the Commission was whether the provisions of the proposed agreement were fair and reasonable. The Commission considered the nature of the industry, the bargaining positions of the parties, and the terms of the agreement. Infinity Constructions Qld Pty Ltd argued that certain provisions of the agreement were overly restrictive and would impose significant costs on the employer. The Union, on the other hand, argued that the agreement was necessary to protect the rights and interests of its members. The Commission had to balance the competing interests of the parties and determine whether the agreement met the statutory criteria for approval.

After considering the submissions of both parties, the Commission found that the agreement contained provisions that were not in the best interests of the employees or the employer. The Commission was particularly concerned with provisions that imposed significant costs on the employer and restricted the employer's ability to manage its business. However, the Commission also found that the agreement contained provisions that were in the best interests of the employees, such as provisions relating to pay and conditions. The Commission determined that the agreement could be approved with modifications to remove the provisions that were not in the best interests of the parties. The Commission made orders approving the agreement with modifications and directing the parties to implement the modified agreement.

The Commission's decision provides useful guidance for employers and unions when negotiating and seeking approval of collective agreements. The decision highlights the importance of balancing the interests of both parties and ensuring that the agreement meets the statutory criteria for approval. The decision also emphasises the need for parties to negotiate in good faith and to avoid including provisions that are overly restrictive or impose significant costs on the employer.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established