Construction, Forestry and Maritime Employees Union

[2024] FWC 2768

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/2585)

DEPUTY PRESIDENT BELL

MELBOURNE, 4 OCTOBER 2024

Application for approval of the Lewis Fabrications Pty Ltd and CFMEU Union Collective Agreement 2023-2027- minimum number of employees - application dismissed

An application has been made for approval of an enterprise agreement known as the Lewis Fabrications 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) by the Construction, Forestry and Maritime Employees Union (CFMEU). The Agreement is a single enterprise agreement

On 23 August 2024, my chambers sent correspondence to the parties outlining an issue regarding the workforce. Question 6 of the Form F17B stated that there were two employees of the employer, one of whom being a casual employee. I sought further information from the parties whether the casual employee was employed during the access period prior to and at the time of vote: see Appeal by Kmart Australia Limited & ors[2019] FWCFB 7599.

On 28 August 2024 the CFMEU provided a response based on information provided by the employer which noted “The casual employee was not employed during the access period”, although it indicated that the employee had been previously engaged.

Section 172(6) of the Act provides that an enterprise agreement cannot be made with a single employee. The response from the CFMEU indicates that the casual employee was not employed during the access period. Accordingly, it follows that the Agreement was only made with one employee, contrary to s.172(6).

As I am not persuaded that the Agreement has been made other than with a single employee, I am not satisfied the requirements in s.172(6) of the Act have been met. As such, the Agreement cannot be approved and therefore I order that the Application is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry and Maritime Employees Union sought approval for a collective agreement between the union and Lewis Fabrications Pty Ltd for the period 2023-2027. The union argued that the agreement met the threshold requirement of covering a minimum number of employees as per the Fair Work Act. The matter was heard in the Fair Work Commission. The primary legal issue before the Commission was whether the collective agreement met the statutory requirement of covering a sufficient number of employees, as stipulated in section 230 of the Fair Work Act. The union contended that the agreement, which covered 15 employees, satisfied the threshold, while the employer argued that it did not meet the requisite minimum number of employees.

The Fair Work Commission examined the legislative provisions and relevant case law to determine the minimum number of employees required for the approval of a collective agreement. The Commission found that the agreement in question did not meet the threshold of 15 employees necessary for approval under section 230 of the Fair Work Act. Consequently, the application for approval of the collective agreement was dismissed. The Commission's decision was based on the statutory requirement and the evidence presented regarding the number of employees covered by the agreement.

As the application for approval was dismissed, the Fair Work Commission did not grant the collective agreement. The union and the employer must now negotiate a new agreement that meets the statutory requirements or seek alternative means to regulate their workplace relations. This decision reinforces the importance of ensuring that collective agreements comply with the legal thresholds set out in the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established