Construction, Forestry and Maritime Employees Union

[2024] FWCA 71

[2024] FWCA 71

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2023/5234)

MCCONNELL DOWELL CONSTRUCTORS (AUST) PTY LTD AND CFMEU NEW BRIDGEWATER BRIDGE (PRECAST) ENTERPRISE AGREEMENT (TAS) 2023

Building, metal and civil construction industries
COMMISSIONER LIM	PERTH, 8 JANUARY 2024

Application for approval of the McConnell Dowell Constructors (Aust) Pty Ltd and CFMEU New Bridgewater Bridge (Precast) Enterprise Agreement (Tas) 2023

1. The Construction, Forestry and Maritime Employees Union has made an application for the approval of an enterprise agreement known as the McConnell Dowell Constructors (Aust) Pty Ltd and CFMEU New Bridgewater Bridge (Precast) Enterprise Agreement (Tas) 2023 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

1. 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 25 October 2023 and the Agreement was made on 5 December 2023. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

1. On the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187 and 188 of the Act as are relevant to this application for approval have been met.

1. The title of the agreement in the NERR differed from the title contained in clause 1 of the Agreement. Pursuant to 188(5) of the Act, I am satisfied that the agreement would have been genuinely agreed to but for the minor technical errors made in relation to the requirements set out in s 174(1A) of the Act. I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the errors. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(5) of the Act.

1. I note that Clause 20.3(i) of the Agreement provides that a casual Employee who has been engaged by the Employer on a regular and systematic basis for a period in excess of six (6) weeks, thereafter, has the right to request in writing to have their contract of employment converted to permanent employment if the employment is to continue beyond the conversion process. The decision as to whether the employment is made permanent is a decision of the Employer. This is inconsistent with s 66B(1)(b) of the Act, which provides that an employer must offer conversion after 12 months, if during at least 6 months the employee has worked a regular pattern of hours on an ongoing basis which they could continue to work as a full or part time employee.

1. Additionally, Clause 38.5 of the Agreement provides compassionate leave where a member of an employee’s immediate family or household contracts or develops a serious illness or sustains a serious injury or dies however it is silent in relation to compassionate leave for stillbirth/miscarriage as is provided by s 104(1)(b) and (c) of the Act. Clause 40(b) of the agreement provides for majority agreement between employees and the employer to the substitution of public holidays whereas s 115(3) of the Act appears to provide for an employee to agree with the employer.

1. However, I am satisfied that under clause 33 of the Agreement, the more beneficial entitlements of the National Employment Standards (NES) will prevail where there is an inconsistency between the Agreement and the NES.

1. The Construction, Forestry and Maritime Employees Union (the CFMEU), 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), and based on the declaration provided by the organisation, I note that the organisation is covered by the Agreement.

1. The Agreement was approved on 8 January 2024 and, in accordance with s 54, will operate from 16 January 2024.  The nominal expiry date of the Agreement is 30 June 2026.

COMMISSIONER

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