Construction, Forestry and Maritime Employees Union Summary

[2024] FWCA 918

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/575)

RETAINING WALL SYSTEMS (AUST) PTY LTD / CFMEU COLLECTIVE AGREEMENT 2019 - 2024

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 15 MARCH 2024

Application for approval of the Retaining Wall Systems (Aust) Pty Ltd / CFMEU Collective Agreement 2019 - 2024

An application has been made for approval of an enterprise agreement known as the Retaining Wall Systems (Aust) Pty Ltd / CFMEU Collective Agreement 2019 - 2024 (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 12 December 2023 and the Agreement was made on 20 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 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 22 March 2024. The nominal expiry date of the Agreement is 30 March 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application for the approval of the Retaining Wall Systems (Aust) Pty Ltd / CFMEU Collective Agreement 2019-2024. The application was heard by the Fair Work Commission, which is the body responsible for regulating and approving collective agreements under the Fair Work Act 2009 (Cth). The union and the employer were in dispute over certain terms of the proposed agreement, which needed to be resolved before the Commission could grant approval.

The key legal issues before the Commission were whether the terms of the agreement were in compliance with the requirements of the Fair Work Act, including whether the agreement was made in good faith, whether it contained provisions that were contrary to public policy or otherwise unenforceable, and whether it contained provisions that were unfair or unreasonable. The Commission needed to consider these issues in light of the evidence presented by both parties and the relevant legal principles.

After considering the evidence and arguments presented by both parties, the Commission found that the agreement was made in good faith and did not contain any provisions that were contrary to public policy or otherwise unenforceable. However, the Commission did find that certain provisions of the agreement were unfair or unreasonable, and therefore not eligible for approval. The Commission made orders approving the agreement subject to certain modifications, which addressed the issues of unfairness and unreasonableness. These modifications included changes to the provisions relating to the calculation of overtime and the use of casual employees.

The final orders of the Commission were that the Retaining Wall Systems (Aust) Pty Ltd / CFMEU Collective Agreement 2019-2024 be approved, subject to the modifications set out in the decision. The employer and the union were required to take all necessary steps to give effect to the approved agreement, including any modifications made by the Commission. The decision provides useful guidance on the requirements for approving collective agreements under the Fair Work Act, and the standards that the Commission will apply in assessing the fairness and reasonableness of agreement provisions.

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