Construction, Forestry and Maritime Employees Union

[2024] FWCA 3713

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/3165)

BEENLEIGH STEEL FABRICATIONS 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 Beenleigh Steel Fabrications 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 Beenleigh Steel Fabrications 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 11 June 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

In the Fair Work Commission, the Construction, Forestry and Maritime Employees Union filed an application for the approval of the Beenleigh Steel Fabrications Pty Ltd Southern Queensland Correctional Precinct Stage 2 Project Agreement 2024. The application was made under section 235A of the Fair Work Act 2009, seeking the Commission’s endorsement of the proposed agreement as a registered agreement. The dispute centred on the terms and conditions of employment for workers involved in the project, with the union arguing that the agreement adequately represented the interests of the employees while the employer contended that certain provisions were not in line with fair work principles.

The central legal issue before the Commission was whether the proposed agreement met the statutory requirements for approval as a registered agreement. This involved a detailed examination of the agreement’s provisions to determine if they complied with the Fair Work Act, including ensuring that the agreement provided for fair and reasonable terms and conditions of employment and did not unfairly discriminate against any class of employee. Additionally, the Commission had to consider if the agreement had been genuinely negotiated between the parties and whether it appropriately balanced the interests of both employers and employees.

The Commission, after reviewing the evidence and submissions from both parties, found that the agreement generally met the statutory requirements for approval. The Commission acknowledged the union’s argument that the agreement adequately reflected fair work principles and provided for reasonable terms and conditions. However, the Commission identified certain provisions that needed minor adjustments to ensure they were compliant with the Fair Work Act. After negotiating amendments to these provisions, the Commission concluded that the agreement, as amended, met the necessary criteria for approval. Consequently, the Commission approved the Beenleigh Steel Fabrications Pty Ltd Southern Queensland Correctional Precinct Stage 2 Project Agreement 2024, subject to the agreed amendments.

The final orders of the Commission included the approval of the amended agreement, with specific directions on the implementation and notification processes. The Commission also directed that the agreement be registered with the Fair Work Commission and that copies be provided to all relevant parties within the specified timeframe. This decision ensures that the terms of the agreement are legally binding and that both employers and employees are protected under the approved terms.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established