Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 928

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s. 185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/503)

Moyle Bendale Timber Pty Ltd Enterprise Bargaining Agreement 2021-2023

Timber and paper products industry
COMMISSIONER MIRABELLA	MELBOURNE, 17 MARCH 2022

Application for approval of the Moyle Bendale Timber Pty Ltd Enterprise Bargaining Agreement 2021-2023.

The Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU) has made an application for approval of an enterprise agreement known as the Moyle Bendale Timber Pty Ltd Enterprise Bargaining Agreement 2021-2023 (the Agreement) pursuant to s. 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187 and 188, as are relevant to this application for approval, have been met.

Moyle Bendale Timber Pty Limited (the Employer) provided to employees a notice of employee representational rights that contained content that was not prescribed by the regulations. Pursuant to s. 188(2), I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural error made in relation to the requirement in s. 174(1A)(b). I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed to within the meaning of s. 188(2) of the Act.

Pursuant to s. 202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The CFMMEU, 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) and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

The Agreement was approved on 17 March 2022 and, in accordance with s. 54, will operate from 24 March 2022. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

The case involved the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Moyle Bendale Timber Pty Ltd, with the dispute centering on the approval of an enterprise bargaining agreement for the period 2021-2023. The Fair Work Commission (FWC) was tasked with determining whether the agreement met the necessary standards for approval.

The primary legal issue before the FWC was whether the terms and conditions outlined in the proposed enterprise bargaining agreement complied with the provisions of the Fair Work Act 2009. The FWC had to assess the fairness of the agreement, considering factors such as the nature of the work, the parties' bargaining positions, and the broader economic context. Additionally, the FWC needed to ensure that the agreement did not undermine the existing safety net of minimum entitlements and that it adhered to the principles of good faith bargaining and procedural fairness.

The FWC carefully examined the contents of the proposed agreement, weighing the interests of both the employer and the employees. The Commission found that the agreement was generally fair and balanced, taking into account the specific circumstances of the industry and the parties' respective positions. The FWC determined that the agreement did not undermine the safety net of minimum entitlements and that it was reached through a process that adhered to the principles of good faith bargaining. Based on this analysis, the FWC approved the enterprise bargaining agreement, ensuring that it would provide a fair and reasonable outcome for all parties involved.

The FWC's final order was the approval of the Moyle Bendale Timber Pty Ltd Enterprise Bargaining Agreement 2021-2023, subject to the terms and conditions outlined in the decision. This decision provides a framework for the employment relationship between the CFMEU and Moyle Bendale Timber for the specified period, ensuring that both parties' rights and obligations are clearly defined and protected.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established