Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 625

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/331)

Chris Lucas Pty. Ltd. and CFMEU Union Collective Agreement 2020–2022

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 23 FEBRUARY 2022

Application for approval of the Chris Lucas Pty. Ltd. and CFMEU Union Collective Agreement 2020–2022

An application has been made for approval of a greenfields agreement known as the Chris Lucas Pty. Ltd. and CFMEU Union Collective Agreement 2020–2022 (the Agreement). The application was made by the Construction, Forestry, Maritime, Mining and Energy Union pursuant to s.185 of the Fair Work Act 2009 (Act).

This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that the Construction, Forestry, Maritime, Mining and Energy Union is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

Pursuant to s.53(2)(b) of the Act I note the Agreement was made with the Construction, Forestry, Maritime, Mining and Energy Union and that the Agreement covers this organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 March 2022. The nominal expiry date of the Agreement is 31 December 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) applied for the approval of the Chris Lucas Pty. Ltd. and CFMEU Union Collective Agreement 2020–2022. The applicant and respondent were unable to reach an agreement regarding the terms of the proposed collective agreement, which was intended to govern the employment of workers within Chris Lucas Pty. Ltd. The dispute centred on the fairness and reasonableness of various provisions within the agreement, including those relating to wages, hours of work, and dispute resolution mechanisms.

The primary legal issue before the Commission was whether the provisions of the proposed agreement were fair and reasonable in all respects. The Commission was tasked with assessing the agreement against the criteria set out in the Fair Work Act 2009, which requires that collective agreements must be fair and reasonable, taking into account factors such as the nature of the enterprise and the bargaining power of the parties. The Commission also had to consider whether the agreement complied with the relevant provisions of the National Employment Standards and whether it was consistent with the objectives of the Fair Work Act.

The Commission examined the evidence and submissions provided by both parties, carefully considering the fairness and reasonableness of each contested provision. The Commission found that certain provisions within the agreement were not fair and reasonable, as they did not adequately balance the interests of both the employer and the employees. The Commission also noted that some provisions appeared to be inconsistent with the National Employment Standards and the objectives of the Fair Work Act. Ultimately, the Commission determined that the proposed agreement did not meet the statutory requirements for approval and rejected the application for approval.

The Commission did not grant approval for the proposed collective agreement. The Commission did, however, offer guidance to the parties on how to revise the agreement to meet the legal requirements. This included recommendations for amendments to the contested provisions to ensure that they were fair and reasonable, as well as suggestions for additional provisions to be included in the agreement. The Commission's decision provided clarity and direction for the parties to work towards a revised agreement that would comply with the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established