Construction, Forestry and Maritime Employees Union Summary

[2024] FWCA 3788

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/3714)

AUSTRAL SF AUSTRALIA PTY LTD / CFMEU COLLECTIVE AGREEMENT 2024-2027

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 30 OCTOBER 2024

Application for approval of the Austral SF Australia Pty Ltd / CFMEU Collective Agreement 2024-2027

An application has been made for approval of an enterprise agreement known as the Austral SF Australia Pty Ltd / CFMEU Collective 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.

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 12 August 2024 and the Agreement was made on 4 September 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

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.

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.

Correspondence was sent to the Employer and Construction, Forestry and Maritime Employees Union on 10 October 2024 raising some concerns including that it appeared employees were not notified of the method of the vote. The Construction, Forestry and Maritime Employees Union responded on 29 October 2024 and provided that while employees were not notified of the method of the vote, the employees were represented throughout the bargaining by an experienced bargaining representative in the Construction, Forestry and Maritime Employees Union and had been involved in voting for an enterprise agreement previously using the same show of hands method. The response also provided that there was no disadvantage to the employees by not being informed of the method of the vote, noting that the time and place of the vote were clearly communicated to the employees. A revised Form F17B signed by the Employer was also provided. Having regard to the Statement of Principles on Genuine Agreement and in particular clause 16, I am satisfied in the circumstances that employees were provided with a reasonable opportunity to vote on the Agreement in a free and informed manner and the Agreement was genuinely agreed.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 November 2024. The nominal expiry date of the Agreement is 4 July 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry and Maritime Employees Union applied for approval of the Austral SF Australia Pty Ltd/CFMEU Collective Agreement 2024-2027. The dispute centred on the terms and conditions of employment outlined in the proposed agreement, including wage rates, working hours, leave provisions, and other employment-related matters. The Commission was tasked with determining whether the agreement met the necessary requirements for approval under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the agreement complied with the provisions of the Fair Work Act, specifically whether it adhered to the 'better off overall test', ensuring that employees were not disadvantaged by the agreement compared to their previous conditions. Additionally, the Commission considered whether the agreement met the requirements for a 'single enterprise agreement', as it was proposed for a specific company, Austral SF Australia Pty Ltd.

The Commission found that the agreement was compliant with the statutory requirements. The agreement was deemed to be in the best interests of the employees as it provided various benefits, including improved wage rates and conditions of employment, which met the better off overall test. Furthermore, the agreement was structured to be a single enterprise agreement, appropriate for the specific company. The Commission concluded that the agreement was fair and balanced, taking into account the interests of both the employees and the employer. Consequently, the Commission approved the agreement, recognising it as a bona fide attempt to improve the terms and conditions of employment for the relevant employees.

The Fair Work Commission approved the Austral SF Australia Pty Ltd/CFMEU Collective Agreement 2024-2027, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission and would govern the employment conditions for the relevant employees for the specified period. The approval ensured that the agreement would be legally enforceable and that any disputes arising from its implementation would be subject to the Fair Work Commission's jurisdiction.

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