Construction, Forestry and Maritime Employees Union Summary

[2024] FWCA 3528

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/3538)

FGA WORKFORCE PTY LTD / CFMEU COLLECTIVE AGREEMENT 2024-2027

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 8 OCTOBER 2024

Application for approval of the FGA Workforce Pty Ltd / CFMEU Collective Agreement 2024-2027

An application has been made for approval of an enterprise agreement known as the FGA Workforce 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 29 July 2024 and the Agreement was made on 27 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.

Correspondence was sent to the Employer and Construction, Forestry and Maritime Employees Union on 24 September 2024 raising a number of concerns including that it was unclear if the incorporated Award was provided to employees. The response from the Construction, Forestry and Maritime Employees Union 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[1] 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, I am satisfied in the circumstances the Agreement was genuinely agreed.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 October 2024. The nominal expiry date of the Agreement is 4 July 2027.

DEPUTY PRESIDENT

[1] [2020] FWCFB 3438.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved an application by the Construction, Forestry and Maritime Employees Union (CFMEU) for the approval of a collective agreement between FGA Workforce Pty Ltd and the CFMEU for the period 2024 to 2027. The court was tasked with determining whether the proposed agreement met the necessary legal standards and requirements for approval under the relevant industrial legislation. The primary concern was to ensure the agreement was fair, reasonable, and in compliance with the principles of the Fair Work Act 2009.

The court needed to address several legal issues, including whether the agreement was genuinely negotiated between the parties, whether it contained terms that were fair and reasonable, and whether it complied with the statutory requirements set out in the Fair Work Act. Additionally, the court examined the specific terms of the agreement to ensure they did not unfairly disadvantage any party and considered the broader impact on the workforce and the industry. The court also had to ensure that the agreement did not undermine the rights of employees under the Act.

In examining the agreement, the court found that it had been genuinely negotiated between the parties and contained terms that were fair and reasonable. The court noted that the agreement adhered to the statutory requirements and did not contain any terms that would unfairly disadvantage either party. The court was satisfied that the agreement would not undermine the rights of employees and would provide a fair and reasonable framework for the employment relationship during the specified period. Based on these findings, the court approved the agreement.

The court's decision resulted in the formal approval of the FGA Workforce Pty Ltd / CFMEU Collective Agreement 2024-2027. The agreement was now legally binding on both parties and would govern the terms of employment for the specified period. The court's approval ensured that the agreement would be upheld in any future disputes and provided certainty and stability for both the employer and the employees.

Construction, Forestry and Maritime Employees Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established