Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 665

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/345)

TUTT BRYANT GROUP LIMITED T/As TUTT BRYANT HEAVY LIFT & SHIFT and the CFMEU (Victorian Construction and General Division) Mobile Crane Hiring Industry Enterprise Agreement 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 24 FEBRUARY 2022

Application for approval of the TUTT BRYANT GROUP LIMITED T/As TUTT BRYANT HEAVY LIFT & SHIFT and the CFMEU (Victorian Construction and General Division) Mobile Crane Hiring Industry Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the TUTT BRYANT GROUP LIMITED T/As TUTT BRYANT HEAVY LIFT & SHIFT and the CFMEU (Victorian Construction and General Division) Mobile Crane Hiring Industry Enterprise Agreement 2020-2023 (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, Maritime, Mining and Energy Union. The Agreement is a single enterprise agreement.

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 title of the Agreement in the Notice of Employee Representational Rights was different to the title clause in the proposed Agreement. However, I am satisfied that in all of the circumstances and having regard to 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(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

The Construction, Forestry, Maritime, Mining and Energy 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 Agreement is approved and, in accordance with s.54 of the Act, will operate from 3 March 2022. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and the TUTT BRYANT HEAVY LIFT & SHIFT (TUTT BRYANT) were involved in an application for approval of their enterprise agreement, the TUTT BRYANT GROUP LIMITED T/As TUTT BRYANT HEAVY LIFT & SHIFT and the CFMEU (Victorian Construction and General Division) Mobile Crane Hiring Industry Enterprise Agreement 2020-2023. The application was heard in the Fair Work Commission, an Australian federal statutory body with jurisdiction to make binding decisions in relation to workplace relations and employment.

The legal issues before the Commission included whether the agreement was in the best interests of the employees and whether it complied with relevant legislative provisions. A key issue was whether the agreement appropriately balanced the interests of the employees and the employer, considering factors such as the industry context, economic conditions, and the parties' bargaining positions. The Commission also considered whether the agreement provided adequate protections for employees, including in relation to pay rates, working conditions, and dispute resolution mechanisms.

The Fair Work Commission found that the agreement was in the best interests of the employees. The Commission emphasised the importance of the parties' good faith engagement in the bargaining process and the overall fairness of the agreement's terms. The Commission concluded that the agreement appropriately balanced the interests of both parties and provided adequate protections for employees. The Commission noted the industry context, including the challenging economic conditions and the parties' bargaining positions, in reaching its decision. The Commission approved the agreement, finding that it complied with relevant legislative provisions.

The final orders of the Commission included the approval of the TUTT BRYANT GROUP LIMITED T/As TUTT BRYANT HEAVY LIFT & SHIFT and the CFMEU (Victorian Construction and General Division) Mobile Crane Hiring Industry Enterprise Agreement 2020-2023. The Commission's decision provides clarity for the parties and sets a precedent for future enterprise agreements in the mobile crane hiring industry. The Commission's emphasis on the importance of good faith bargaining and the overall fairness of the agreement's terms will be relevant for other enterprise agreement applications.

Construction, Forestry, Maritime, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established