Construction, Forestry and Maritime Employees Union
[2025] FWCA 2701
•13 AUGUST 2025
| [2025] FWCA 2701 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Construction, Forestry and Maritime Employees Union
(AG2025/1449)
KENNY CONSTRUCTIONS (AUST) PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2023–2027
| Building, metal and civil construction industries | |
| DEPUTY PRESIDENT BELL | MELBOURNE, 13 AUGUST 2025 |
Application for approval of the Kenny Constructions (Aust) Pty Ltd and CFMEU Union Collective Agreement 2023–2027 (the Agreement) – objections by AWU – application approved.
The Construction, Forestry and Maritime Employees Union (CFMEU) has applied for approval of an enterprise agreement known as the Kenny Constructions (Aust) 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). The Agreement is a single enterprise agreement made with the employer, Kenny Constructions (Aust) Pty Ltd.
Prior to the matter being allocated to me, the Australian Workers’ Union (AWU) requested, as an interested person, a copy of the application file. That request was made on 22 May 2025 and a copy of relevant material (with some redactions) was provided by the Commission registry staff to the AWU the following day. On 26 May 2025, the AWU wrote to the Commission stating that it sought to be heard pursuant to s.590 of the Act in relation to the application. The AWU asked to “place a note on the file” to the effect that the member to whom the file would be allocated would be aware of the request. Pausing there, the AWU did not state what it wanted to be heard about nor did it identify any issue or concern.
Upon the matter being allocated to me, I wrote to the parties on 27 May 2025 and asked the AWU to set out its concerns by 29 May 2025. The AWU did so, and its concerns were:
· First, it said the Commission should not be satisfied the group of employees covered by the Agreement was ‘fairly chosen’ (being a reference to the requirement of s.186(3) of the Act);
· Second, it said that the CFMEU did not have any coverage of any employee. The AWU stated that, given the CFMEU’s role in bargaining, this also raised issues such as whether reasonable steps had been taken to explain the terms and effect of the Agreement to employees (s.180(5)). If the AWU’s contention was correct, the CFMEU’s application to the Commission (which is predicated on being a “bargaining representative”) would be incompetent.
· Third, it raised a number of independent issues concerning whether there was ‘genuine agreement’ or not, and it stated that the employer’s Form F17B declaration in support of the Agreement approval contained “bald assertions relating to a delegate, organiser or employer explaining the terms of the agreement at a single meeting on 13 May 2025 (the same meeting that the vote was conducted via a show of hands) in the forms filed…” The AWU noted the details of the vote were redacted in the material before it and flagged a further possible objection.
The AWU did not go so far as to say that the CFMEU did not have constitutional coverage, it said there was “no evidence” before the Commission in this regard.
On 30 May 2025, I listed the matter for a hearing on 12 June 2025. I informed the AWU of the voting details from the Form F17B (namely, that there were 10 eligible employees, all of whom voted in favour of the Agreement) and directed the AWU to make any further submissions by 3 June 2025 and the CFMEU to reply by 9 June 2025. The AWU did not file any material as directed. The CFMEU filed some material in reply to the ‘genuine agreement’ issue on 5 June 2025.
Less than an hour before the hearing listed on 12 June 2025, the AWU filed late material. No explanation for the lateness was provided and the AWU raised a number of additional matters that could – and should – have been raised earlier. The AWU filed no actual evidence and purported to seek an opportunity to cross-examine the declarant of the Form F17B (which had been redacted in the copy sent to the AWU on 23 May 2025). The AWU’s email elaborated in more detail about its complaints contained in its email on 29 May 2025. Again, they were matters that could – and should – have been raised much earlier. The CFMEU filed submissions in response at 3pm, as the hearing was about to start. The matter was adjourned.
I issued further directions for the exchange of material on, firstly, 19 June 2025, and reply material by exchange by 24 June 2025, with a further hearing listed for 26 June 2025. On 18 June 2025 the CFMEU filed a witness statement from Mr Paul Dunbar, Industrial Relations Coordinator for the CFMEU in Queensland. Most of that statement was hearsay and of little probative value. Mr Dunbar did depose to one important matter, which I am satisfied is within his own knowledge, being that the work by the relevant employees of the employer included form workers, carpenters and non-trades persons at a construction project known as the ‘Boggo Road Project’ in Dutton Park, Queensland. It is unclear why the CFMEU did not simply get a delegate, or the employer, to depose to such matters. However, Mr Dunbar’s evidence about this matter is corroborated with subsequent evidence from an employee, filed by the CFMEU. The unpersuasive parts of Mr Dunbar’s evidence included opinions to the effect that another project involving the employer was “transitioning” from a “civil project into a typical building project”.
The employer’s activity in “civil” projects explained the demarcation dispute between the AWU and CFMEU. It was uncontroversial that the AWU’s membership rules permit it to represent employees by the “industry” of “civil construction”, where the CFMEU did not have an industry rule to that effect. The CFMEU’s industry rule permits it to recruit members in “building” as an industry. However, so-called “occupational” rules of the CFMEU’s rules permit it to engage members working in defined occupational categories. One such occupation was a “carpenter”.
On 20 June 2025, the CFMEU filed submissions titled “Coverage submissions for the CFMEU”. Those submissions were primarily directed at establishing that the CFMEU had coverage in accordance with its “industry rule” for “building”, however they also relied on various “occupational” rules including carpenters, painters, crane crew and concreters.
It was sufficient for the CFMEU to establish it was entitled to represent – i.e. in accordance with its coverage rules – at least one employee who was to be covered by the Agreement for the CFMEU to be a bargaining representative and for the CFMEU to be capable of applying to the Commission for approval of the Agreement.
The AWU did not file any evidence or submissions in accordance with the directions. Later on 20 June 2025, the AWU instead filed an application seeking the production of documents from the employer and the attendance of witnesses from the employer “for the purposes of cross-examination”. The AWU also sought to adjourn the further hearing. I refused the applications.
On 24 June 2025, the AWU filed submissions, now prepared by counsel. The AWU sought leave to be represented by counsel, which I granted over the objection of the CFMEU. The AWU filed no evidence. Notwithstanding the belated filing on those submissions, the AWU raised a number of valid criticisms concerning the application. They included the essentially ‘template’ nature of the detail in the application forms and the absence of any clear information specific to the employer and the employees at hand. Among other matters, the AWU contended there was insufficient information to actually demonstrate that the CFMEU had coverage. The (again) late delivery of the AWU’s material had the consequence that the CFMEU was not in a position to properly address the matters raised.
Nonetheless, the involvement of counsel for the AWU permitted the balance of the matter to be run more efficiently in the following respects:
· First, the AWU made careful oral submissions, which the CFMEU could respond to after obtaining the benefit of transcript.
· Second, the AWU abandoned its contention that the cohort of employees covered by the Agreement was not ‘fairly chosen’.
The CFMEU was given the opportunity to provide further material responsive to the submissions recorded in transcript. For reasons not necessary to explain, the CFMEU and employer did not provide any further information until 31 July 2025. That material included a witness statement from an employee of Kenny Constructions, written submissions and other supporting material directed at the CFMEU’s coverage entitlement.
A week after the CFMEU filed its material, the AWU requested to provide a brief written response (taking another week). No explanation was given about what it sought to address, nor the time required or delay in the request. I was not satisfied it was necessary to hear further from the AWU in circumstances where it has no members of its own with the employer and has not filed evidence.
The employee witness statement was for a CFMEU member. He started working for the company in October 2021 with an apprenticeship and was awarded a Certificate III in Carpentry on 17 February 2025. What appears to be a revised employment contract specifies his occupation as “carpenter”. I am satisfied from this evidence that the CFMEU has sufficient coverage to be a bargaining representative based on its “occupational” rule coverage. I am not otherwise persuaded from the material before me that the CFMEU had coverage by reason of its “industry rules”, noting that the material before me included no probative material from the employer of its activities or works.
The additional material provided by the CFMEU contained information about the process for the making of the Agreement, based on information provided by a CFMEU Organiser. That material, while not direct evidence, nonetheless satisfies me regarding the progress of the making of the Agreement and various steps leading up to it. I have no reason to doubt it and it goes well beyond the “template” explanation prepared by the CFMEU for the employer’s Form F17B declaration. If some of that information was included in the original application, it is possible that the AWU would not have made its objections to the application or that its objections were more narrowly cast. The Queensland branch of the CFMEU ought to take the opportunity to reflect upon future applications involving the CFMEU as an applicant for the approval of enterprise agreements. The AWU is, in turn, encouraged to reflect upon engaging with the Commission on a more timely basis, particularly in matters relating to employers for whom the AWU does not have any members.
Having regard to the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss. 186, 187, 188, 193 and 193A as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer. However, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.
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), I note that the Agreement covers the organisation.
The Agreement was approved on 13 August 2025 and, in accordance with s.54 of the Act, will operate from 20 August 2025. The nominal expiry date of the Agreement is 2 July 2027.
DEPUTY PRESIDENT
Appearances:
12 June 2025:
E. Dalgleish with P. Dunbar from the CFMEU.
S. Brennan from Kenny Constructions (Aust) Pty Ltd.
S. Miller from the AWU.
26 June 2025:
E. Dalgleish with P. Dunbar from the CFMEU.
T. Spence of Counsel instructed by S. Miller from the AWU.
Hearing details:
2025.
Melbourne (by video link via Microsoft Teams):
June 12, 26.
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