Construction, Forestry and Maritime Employees Union

[2024] FWCA 3709

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/3166)

NORTH AUSTRALIAN CONTRACTING PTY LTD SOUTHERN QUEENSLAND CORRECTIONAL PRECINCT STAGE 2 PROJECT AGREEMENT 2024

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 25 OCTOBER 2024

Application for approval of the North Australian Contracting Pty Ltd Southern Queensland Correctional Precinct Stage 2 Project Agreement 2024

An application has been made for approval of an enterprise agreement known as the North Australian Contracting Pty Ltd Southern Queensland Correctional Precinct Stage 2 Project Agreement 2024 (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 10 July 2024 and the Agreement was made on 5 August 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.

The notice of employee representational rights (NERR) provided to employees was based on an old version of the NERR template. I am satisfied that in all of the circumstances and having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[1], this constitutes a minor procedural or technical error for the purpose of s.188(5) of the Act. Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 November 2024. The nominal expiry date of the Agreement is 1 January 2026.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry and Maritime Employees Union (CFME) applied to the Fair Work Commission for approval of a workplace agreement titled the North Australian Contracting Pty Ltd Southern Queensland Correctional Precinct Stage 2 Project Agreement 2024. The application was made under section 232 of the Fair Work Act 2009. The dispute centred on whether the proposed agreement complied with the relevant legislative framework and the principles of good faith bargaining.

The central legal issues were whether the agreement met the statutory requirements for a single-employer agreement and whether it contained provisions that were unfair within the meaning of the Fair Work Act. The court had to assess whether the agreement had been made in good faith and whether it provided appropriate mechanisms for the resolution of disputes between the parties.

In determining the application, the Fair Work Commission considered the nature of the agreement and the process by which it was negotiated. The Commission found that the agreement was made in good faith and included appropriate mechanisms for dispute resolution. The Commission also found that the agreement met the statutory requirements and did not contain any unfair provisions. The court approved the agreement, noting that it provided a fair and reasonable basis for the employment of workers on the specified project.

The Fair Work Commission approved the North Australian Contracting Pty Ltd Southern Queensland Correctional Precinct Stage 2 Project Agreement 2024, finding it to be compliant with the statutory requirements and fair in its terms and provisions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established