Construction, Forestry and Maritime Employees Union

[2024] FWCA 4095

[2024] FWCA 4095

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/4285)

CITYLIFT PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) MOBILE CRANE HIRING INDUSTRY ENTERPRISE AGREEMENT 2024-2027

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 26 NOVEMBER 2024

Application for approval of the Citylift Pty Ltd and the CFMEU (Victorian Construction and General Division) Mobile Crane Hiring Industry Enterprise Agreement 2024-2027

1. An application has been made for approval of an enterprise agreement known as the Citylift Pty Ltd and the CFMEU (Victorian Construction and General Division) Mobile Crane Hiring Industry Enterprise Agreement 2024-2027 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Construction, Forestry and Maritime Employees Union. 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 8 August 2024 and the Agreement was made on 22 October 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

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

1. 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) I note that the Agreement covers the organisation.

1. Correspondence was sent to the Employer and Construction, Forestry and Maritime Employees Union on 15 November 2024 raising a concern that it appeared the method of vote was by a ‘show of hands’ conducted by the employer and accordingly, it was unclear whether this constituted ‘a voting process that ensures the vote of each employee is not disclosed to or ascertainable by the employer’ in accordance with Principle 15a of the Statement of Principles.

1. The Construction, Forestry and Maritime Employees Union provided submissions on 20 November 2024 and conceded that the vote of each employee was disclosed to the employer but submitted that the Commission can nonetheless be satisfied that the Agreement was genuinely agreed. The Construction, Forestry and Maritime Employees Union cited Shop, Distributive and Allied Employees Association v Allen Family Pty Ltd t/a Subway Clare, Subway Findon, Subway Broken Hill, Subway Kadina, Subway Port Adelaide, Subway Port Pirie[1] and submitted that the Full Bench of the Commission observed that inconsistency with Principle 15 ‘does not preclude a finding that the Agreement was genuinely agreed’ and this is because the Statement of Principles does not ‘operate as a set of mandatory rules’ with which noncompliance will mean that the Commission cannot be satisfied an agreement has been genuinely agreed.

1. The Construction, Forestry and Maritime Employees Union further submitted that as a bargaining representative for all employees covered by the Agreement, they support the approval of the Agreement and have no concerns that the Agreement was not genuinely agreed. Consequently, it was submitted in accordance with Principle 19 of the Statement of Principles, their views should be given significant weight.  Having regard to the CFMEU submissions and the Statement of Principles on Genuine Agreement and in particular Principles 15 & 19, I am satisfied in the circumstances that the Agreement was genuinely agreed.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 3 December 2024. The nominal expiry date of the Agreement is 2 July 2027.

DEPUTY PRESIDENT

[1] [2024] FWCFB 48 [102] - [103].

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