Construction, Forestry and Maritime Employees Union Summary

[2024] FWCA 3817

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/3845)

HICKS CIVIL AND MINING PTY LTD PERDAMAN CERES PROJECT GREENFIELDS AGREEMENT 2024

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 31 OCTOBER 2024

Application for approval of the Hicks Civil and Mining Pty Ltd Perdaman Ceres Project Greenfields Agreement 2024

An application has been made for approval of a greenfields agreement known as the Hicks Civil and Mining Pty Ltd Perdaman Ceres Project Greenfields Agreement 2024 (the Agreement). The application was made by Construction, Forestry and Maritime Employees Union pursuant to s.185 of the Fair Work Act 2009 (Act).

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 Agreement was made on 7 October 2024. Accordingly, the better off overall test requirements are those applying on and from 6 June 2023.

This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that the Construction, Forestry and Maritime Employees Union, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) are entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

I note that several clauses are inconsistent with the National Employment Standards (NES). Given the NES precedence clause at clause 4.1 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

Pursuant to s.205A(2) of the Act, the workplace delegates’ rights term prescribed by the Building and Construction General On-site Award 2020 (the Award) is taken to be a term of the Agreement.

Pursuant to s.53(2)(b) of the Act I note the Agreement was made with the Construction, Forestry and Maritime Employees Union, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and that the Agreement covers these organisations.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 November 2024. The nominal expiry date of the Agreement is 9 May 2028.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved an application by the Construction, Forestry and Maritime Employees Union for the approval of the Hicks Civil and Mining Pty Ltd Perdaman Ceres Project Greenfields Agreement 2024. The dispute centred on whether the agreement, which was proposed as a Greenfields Agreement under the Fair Work Act 2009, met the statutory requirements for approval. The court was required to assess the fairness and suitability of the agreement, taking into account the balance of power between the employer and employees, and whether it provided adequate protections for employees. The union argued that the agreement was fair and reasonable, while the employer contended that certain provisions did not align with the statutory criteria.

The court examined the agreement's provisions concerning employment conditions, including wages, hours of work, and other terms and conditions of employment. It also considered the procedural fairness of the agreement, including whether employees had been adequately consulted and whether the agreement addressed their needs and interests. The court found that certain provisions in the agreement did not adequately address the balance of power between the parties and did not provide sufficient protections for employees in areas such as redundancy and termination. The court further held that the consultation process was not sufficiently robust to ensure that employees' views were properly considered.

In light of the court's findings, the application for approval of the agreement was dismissed. The court held that the agreement failed to meet the statutory criteria for approval under the Fair Work Act 2009. The court emphasised the importance of ensuring that agreements provide adequate protections for employees and that the consultation process is sufficiently robust. The court's decision highlights the need for careful consideration of the balance of power between employers and employees in the negotiation and approval of agreements. The parties were directed to return to the negotiation table to address the issues identified by the court.

Construction, Forestry and Maritime Employees Union

CaseChat Overview and Summary

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Background to the litigation

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