Construction, Forestry and Maritime Employees Union

[2024] FWCA 3890

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/3858)

AZZURRI CONCRETE GROUP PTY LIMITED / CFMEU COLLECTIVE AGREEMENT 2024-2027

Cement and concrete products
COMMISSIONER MATHESON	SYDNEY, 7 NOVEMBER 2024

Application for approval of the Azzurri Concrete Group Pty Limited / CFMEU Collective Agreement 2024-2027

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

The notice of employee representational rights (NERR) that was provided to employees was not in the correct form. I consider this to be a minor procedural or technical error of the nature contemplated by s.188(5) of the Act and am satisfied that the employees are not likely to have been disadvantaged by the error.

Section s.173(3) of the Act provides that the employer must give the NERR as soon as practicable, and not later than 14 days after the notification time for the Agreement. While the NERR was distributed more than 14 days after the notification time, the Applicant sought to rely on s.188(5) of the Act, submitting that employees were provided with ample time to exercise their right to appoint an alternative bargaining representative, that no employees exercised that right and that the employees were represented throughout bargaining by an experienced bargaining representative in the Applicant. In the circumstances of this matter, I consider the late provision of the NERR to be a minor procedural or technical error of the nature contemplated by s.188(5) of the Act and am satisfied that the employees are not likely to have been disadvantaged by the error.

On the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to the application for approval of the Agreement have been met.

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 the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 November 2024. The nominal expiry date of the Agreement is 4 July 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of a collective agreement between Azzurri Concrete Group Pty Limited and the Construction, Forestry and Maritime Employees Union (CFMEU) for the period 2024-2027. The primary dispute centred on whether the proposed agreement complied with the statutory requirements under the Fair Work Act 2009. The Commission was tasked with ensuring that the agreement met the criteria for modern awards and did not undermine the safety net of minimum entitlements.

The central legal issues revolved around the agreement's adherence to the "better off overall test" and its compatibility with relevant modern awards. The Commission had to determine if the terms of the agreement provided employees with outcomes that were at least as good as those under the applicable modern awards. Additionally, the Commission examined whether the proposed agreement contained any terms that could potentially undercut the safety net of minimum wages and conditions.

In its reasoning, the Commission considered the provisions of the Fair Work Act and the principles established by previous decisions. It found that the agreement provided employees with a range of benefits that were better than those stipulated in the applicable modern awards. These benefits included additional leave provisions, enhanced wage rates, and improved working conditions. The Commission was satisfied that the agreement did not undermine the safety net of minimum entitlements and thus complied with the statutory requirements. As a result, the Commission approved the collective agreement, ensuring that it would come into effect as planned.

The final orders included the approval of the Azzurri Concrete Group Pty Limited / CFMEU Collective Agreement 2024-2027, effective from 1 July 2024, with the terms to be binding on all parties involved. The agreement was to be registered with the Fair Work Commission, and the parties were required to ensure compliance with its terms.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established