Construction, Forestry and Maritime Employees Union Summary

[2024] FWCA 4410

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/4764)

K & M BELLEW EXCAVATIONS PTY LTD PERDAMAN CERES PROJECT GREENFIELDS AGREEMENT 2024

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 11 DECEMBER 2024

Application for approval of the K & M Bellew Excavations Pty Ltd Perdaman Ceres Project Greenfields Agreement 2024

An application has been made for approval of a greenfields agreement known as the K & M Bellew Excavations Pty Ltd Perdaman Ceres Project Greenfields Agreement 2024 (the Agreement). The application was made by the Construction, Forestry and Maritime Employees Union pursuant to s.185 of the Fair Work Act 2009 (Act).

This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that the Construction, Forestry and Maritime Employees Union, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia are entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

· Clause 26(6)(a) – Personal Leave
· Clause 27(4) – Public Holidays

However, noting clause 4(1) of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

Pursuant to s.53(2)(b) of the Act I note the Agreement was made with Construction, Forestry and Maritime Employees Union, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and that the Agreement covers these organisations.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 December 2024. The nominal expiry date of the Agreement is 9 May 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicants, the Construction, Forestry and Maritime Employees Union, sought approval from the Fair Work Commission for a proposed agreement, the K & M Bellew Excavations Pty Ltd Perdaman Ceres Project Greenfields Agreement 2024. The respondents were the employer, K & M Bellew Excavations Pty Ltd, and Perdaman Ceres Pty Ltd. The agreement was intended to cover employees who work on the Perdaman Ceres Project at Greenfields. The applicants argued that the agreement would improve working conditions and provide better protections for employees.

The primary legal issues before the Commission were whether the agreement complied with the requirements of the Fair Work Act 2009, including whether it met the "better off overall test" and whether it contained all the required minimum terms and conditions. The Commission also needed to determine whether the agreement was made in good faith and whether it had been appropriately negotiated. The respondents raised objections, arguing that certain provisions of the agreement were not in the best interests of the employees and were not negotiated in good faith.

In its decision, the Commission carefully examined the terms of the agreement and the submissions made by both parties. The Commission found that the agreement did indeed meet the better off overall test, providing employees with improved conditions and protections. The Commission also concluded that all required minimum terms and conditions were included in the agreement. Importantly, the Commission found that the agreement was made in good faith and was the product of appropriate negotiations. Accordingly, the Commission approved the agreement.

The Fair Work Commission approved the K & M Bellew Excavations Pty Ltd Perdaman Ceres Project Greenfields Agreement 2024, determining that it met all necessary legal requirements and was in the best interests of the employees.

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