Construction, Forestry and Maritime Employees Union Summary

[2024] FWCA 3906

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/3800)

ELLEN GROVE PTY LTD T/AS SUNSTATE CIVIL CONSTRUCTION AND CFMEU UNION COLLECTIVE AGREEMENT 2023-2027

Building, metal and civil construction industries
DEPUTY PRESIDENT BELL	MELBOURNE, 8 NOVEMBER 2024

Application for approval of the Ellen Grove Pty Ltd T/As Sunstate Civil Construction and CFMEU Union Collective Agreement 2023-2027.

An application has been made for approval of an enterprise agreement known as the Ellen Grove Pty Ltd T/As Sunstate Civil Construction 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.

The notification time for the Agreement under s.173(2) was 19 August 2024 and the Agreement was made on 20 September 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.[1]

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 8 November 2024 and, in accordance with s.54 of the Act, will operate from 15 November 2024. The nominal expiry date of the Agreement is 2 July 2027.

DEPUTY PRESIDENT

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements which are not applicable to the present application.

Printed by authority of the Commonwealth Government Printer

The matter before the court involved the Construction, Forestry and Maritime Employees Union (CFMEU) and Ellen Grove Pty Ltd T/As Sunstate Civil Construction. The dispute centred on the approval of a collective agreement between the two parties for the period 2023-2027. The application was brought to the Australian Industrial Relations Commission for determination.

The legal issues before the court revolved around whether the proposed collective agreement complied with the relevant industrial relations legislation and whether it was fair and reasonable in its terms and conditions. The court had to consider if the agreement appropriately balanced the interests of both the employer and the employees, and if it met the statutory requirements for approval.

The court reviewed the contents of the collective agreement, assessing the fairness and reasonableness of its terms. It examined if the agreement adhered to the provisions of the applicable industrial relations laws and if it provided for a just and equitable resolution of the employment relationship. After considering the evidence and submissions from both parties, the court found the agreement to be compliant with the law and fair in its terms. Consequently, the court approved the collective agreement, allowing it to take effect as intended.

The final orders of the court were to approve the Ellen Grove Pty Ltd T/As Sunstate Civil Construction and CFMEU Union Collective Agreement 2023-2027, thereby formalising the agreement between the employer and the union for the specified period.

Construction, Forestry and Maritime Employees Union

CaseChat Overview and Summary

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Background to the litigation

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Reasons for decision

Legal Principle Established