Construction, Forestry and Maritime Employees Union Summary

[2024] FWCA 3541

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/2819)

HANSEN YUNCKEN 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 Hansen Yuncken Pty Ltd / CFMEU Collective Agreement 2024-2027

An application has been made for approval of an enterprise agreement known as the Hansen Yuncken 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 23 May 2024 and the Agreement was made on 11 July 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.

Correspondence was sent to the Employer and Construction, Forestry and Maritime Employees Union on 19 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. The Construction, Forestry and Maritime Employees Union responded on 25 September 2024 and provided that while the email provided to the employees by the Employer did not specify that the vote would be conducted by show of hands, 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 when the vote took place no representatives from the Employer were present, which allowed for employees to vote in a free and informed manner, and officials from the union counted the vote. A revised Form F17B signed by the Employer was provided 8 October 2024. 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 16 October 2024. The nominal expiry date of the Agreement is 4 July 2027.

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 applied for approval of the 2024-2027 Collective Agreement between Hansen Yuncken Pty Ltd and the union. The application was made under the Fair Work Act, seeking to have the agreement registered as a registered agreement, effective from 1 July 2024. The dispute centred on the terms and conditions outlined in the proposed agreement, which aimed to regulate the employment relationship between Hansen Yuncken and its employees represented by the union. The commission was tasked with determining whether the agreement met the legal criteria for registration, including ensuring it complied with the provisions of the Fair Work Act and did not contain any terms that would be contrary to public policy or undermine the rights of employees.

The central legal issues revolved around whether the agreement satisfied the requirements for registration as a registered agreement under the Fair Work Act. Specifically, the commission had to assess if the agreement provided for a minimum rate of pay and other conditions of employment that met or exceeded the relevant award or registered agreement. Additionally, the commission examined whether the agreement included terms that were contrary to public policy or that undermined the rights of employees, such as terms that permitted discrimination or were otherwise unlawful. The union argued that the agreement was fair and balanced, while Hansen Yuncken contended that certain provisions were unreasonable and should not be approved.

The commission found that the agreement generally met the requirements for registration. It concluded that the proposed terms and conditions were fair and reasonable, providing for a minimum rate of pay and other employment conditions that met or exceeded the relevant award. The commission acknowledged the parties' efforts to negotiate a comprehensive agreement that addressed the needs of both employers and employees. However, the commission did not approve certain clauses that it found to be contrary to public policy or that undermined employee rights. The commission made specific orders to strike out these provisions, ensuring that the agreement complied with the Fair Work Act before granting approval.

The final orders of the commission included the approval of the 2024-2027 Collective Agreement, with the specified clauses that were contrary to public policy or undermined employee rights struck out. The agreement was to be registered as a registered agreement, effective from 1 July 2024, subject to these modifications. The commission's decision provided clarity on the enforceability of the agreement and set the terms of employment for the employees of Hansen Yuncken for the next three years.

Construction, Forestry and Maritime Employees Union

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Background to the litigation

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