Construction, Forestry and Maritime Employees Union

[2024] FWCA 3543

[2024] FWCA 3543

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/3537)

MULHERIN RIGGING & CRANES AUSTRALIA PTY LTD / CFMEU COLLECTIVE AGREEMENT 2024-2027

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 9 OCTOBER 2024

Application for approval of the Mulherin Rigging & Cranes Australia Pty Ltd / CFMEU Collective Agreement 2024-2027

1. An application has been made for approval of an enterprise agreement known as the Mulherin Rigging & Cranes 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.

1. 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 1 July 2024 and the Agreement was made on 26 August 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

1. 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.

1. 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.

1. 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.

1. Correspondence was sent to the Employer and Construction, Forestry and Maritime Employees Union on 24 September 2024 raising a number of concerns including that the notice to vote issued to employees and lodged with the Commission does not provide the method of the vote and the incorporated Award was not provided to employees. The Construction, Forestry and Maritime Employees Union responded on 30 September 2024 and provided that while the email sent to the employees did not outline the method of vote, 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. Accordingly, it was submitted 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.

1. Additionally, the response provided that incorporated material was mistakenly not provided to employees, and in addressing this, the Construction, Forestry and Maritime Employees Union relied on the decision in Construction, Forestry, Maritime, Mining and Energy Union v AKN Pty Ltd t/a Aitkin Crane Services[2] where the Full Bench considered an agreement in which there had been partial incorporation of the modern awards, found that these were publicly available on a range of websites and that this was sufficient for the material to be readily available to employees. A revised Form F17B signed by the Employer was also provided with the response. Having regard to the Statement of Principles on Genuine Agreement and in particular clauses 4 to 7 and 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.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 October 2024. The nominal expiry date of the Agreement is 4 July 2027.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318.

[2] [2020] FWCFB 3438.

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