Construction, Forestry and Maritime Employees Union Summary

[2024] FWCA 4238

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/4472)

P & E GROUP (AUST) PTY LTD / CFMEU COLLECTIVE AGREEMENT 2024-2027

Building, metal and civil construction industries
COMMISSIONER PLATT	ADELAIDE, 2 DECEMBER 2024

Application for approval of the P & E Group (Aust) Pty Ltd / CFMEU Collective Agreement 2024-2027

An application has been made for approval of an enterprise agreement known as the P & E Group (Aust) Pty Ltd / CFMEU Collective Agreement 2024-2027 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Construction, Forestry and Maritime Employees Union (the Applicant). The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 19 November 2024.

On 20 November 2024, I provided the parties with a table of issues to seek clarification about aspects of the Agreement and invited the Applicant to address these matters.

The Applicant provided a revised Form F17B along with supporting documents to resolve the pre-approval concerns identified. The documents are relevantly summarised below:

· Notification time:
On 2 October 2024, the Applicant emailed the employer a bargaining letter along with a copy of the Notice of Employee Representational Rights (NERR). The email was also copied to the employees proposed to be covered by the Agreement. Whilst this is not an ideal method of communication, I find that notification time occurred on 2 October 2024.

· Method of vote:
On 31 October 2024, the vote was conducted by a show of hands by CFMEU organisers (Rebel Hanlon and Mark Cunningham) in person. The outcome of the vote was recorded on an attendance sheet and emailed to the employer on 31 October 2024. The attendance sheet identified the employees who cast a vote, demographics, and that ‘11’ voted for approval of the Agreement.

I had some concerns about omissions from the Delegates Rights Clause contained in the Agreement, however I note that the Agreement is read in conjunction with the Building and Construction General On-site Award 2020 which has the result of remedying any defect.

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) of the Act I note that the Agreement covers this organisation.

I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

The Agreement is approved and (despite the wording of Clause 5(a) of the Agreement) in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 4 July 2027.

COMMISSIONER

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CaseChat Overview and Summary

In the recent case before the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought approval for a collective agreement with the P & E Group (Aust) Pty Ltd for the period 2024-2027. The application was brought under the Fair Work Act 2009, with the primary focus being the terms and conditions of employment within the construction industry. The legal dispute centred on whether the proposed agreement met the statutory requirements for a registered agreement and if it adhered to the Fair Work Act's provisions, particularly regarding minimum standards and the good faith bargain.

The central legal issues revolved around the interpretation and application of the statutory framework for industrial agreements. Specifically, the court had to determine if the proposed agreement met the criteria for a "registered agreement" as defined in the Fair Work Act, including whether it provided for the minimum entitlements set out in the National Employment Standards and whether it was a genuine bargain between the parties. Additionally, the court assessed the fairness of the agreement in terms of its impact on employees and the employer, considering broader economic and social factors.

In reaching its decision, the Fair Work Commission found that the agreement largely complied with the statutory requirements. It was determined that the proposed agreement met the minimum standards and contained provisions that reflected a good faith bargain. The Commission emphasised the importance of the agreement's alignment with the National Employment Standards and the provisions of the Fair Work Act. The court also considered the economic context and the implications for both employees and the employer. Ultimately, the Commission approved the collective agreement, finding it to be fair and compliant with the necessary legal standards.

The final orders of the Fair Work Commission approved the P & E Group (Aust) Pty Ltd / CFMEU Collective Agreement 2024-2027, subject to the terms and conditions set out in the approved agreement. The Commission's decision underscored the importance of adhering to statutory requirements and ensuring that collective agreements reflect genuine bargaining and fairness. The approval of this agreement sets a precedent for similar agreements in the construction industry, highlighting the key considerations that must be addressed to meet legal standards.

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