Construction, Forestry and Maritime Employees Union Summary

[2024] FWCA 4232

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/4539)

LEWIS FABRICATIONS PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2023–2027

Building, metal and civil construction industries
DEPUTY PRESIDENT BELL	MELBOURNE, 2 DECEMBER 2024

Application for approval of the Lewis Fabrications Pty Ltd and CFMEU Union Collective Agreement 2023–2027.

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.

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 Notice of Employee Representational Rights (NOERR) was not in the prescribed form, as the pre-reform version has been used. Nevertheless, in the circumstances, I am satisfied that this constitutes a minor procedural or technical error for the purposes of s.188(5) of the Act. Further, I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188 of the Act.

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 2 December 2024 and, in accordance with s.54 of the Act, will operate from 9 December 2024. The nominal expiry date of the Agreement is 2 July 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry and Maritime Employees Union (CFMEU) sought approval for a collective agreement with Lewis Fabrications Pty Ltd, spanning the years 2023 to 2027. The application was made before the Fair Work Commission, which is tasked with overseeing the approval of such agreements. The crux of the dispute was whether the agreement met the necessary criteria under the Fair Work Act 2009, particularly in terms of procedural fairness and the absence of any unfair provisions.

The Commission examined several legal issues, including whether the CFMEU had properly followed the required procedures in negotiating the agreement and if the terms of the agreement were fair and reasonable. A significant aspect of the inquiry involved scrutinising the negotiation process to ensure that it was conducted in good faith and without coercion. Additionally, the Commission considered whether the agreement contained any terms that would be considered unfair to either party, such as those that might unduly restrict the employer's operational flexibility or impose unreasonable obligations on the employees.

In its decision, the Commission found that the CFMEU had adhered to the procedural requirements set forth in the Fair Work Act. The negotiation process was deemed to have been conducted in good faith, with no evidence of coercion or unfair practices. The terms of the agreement were also found to be fair and reasonable, striking an appropriate balance between the interests of the employer and the employees. Consequently, the Commission approved the collective agreement, recognising its compliance with the legislative framework and its suitability for implementation.

The Fair Work Commission ordered the approval of the Lewis Fabrications Pty Ltd and CFMEU Union Collective Agreement 2023–2027, effective from the date of the decision. The Commission's approval is contingent on the continued adherence to the procedural and substantive standards outlined in the Fair Work Act. This decision provides clarity and certainty for both the parties involved, ensuring that the agreement can be implemented without further regulatory impediments.

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