Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 583

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/301)

Sky Deck Steel Pty Ltd T/As Sky Deck by Steel Construct and CFMEU Union Collective Agreement 2020–2022

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 21 FEBRUARY 2022

Application for approval of the Sky Deck Steel Pty Ltd T/As Sky Deck by Steel Construct and CFMEU Union Collective Agreement 2020–2022

An application has been made for approval of a greenfields agreement known as the Sky Deck Steel Pty Ltd T/As Sky Deck by Steel Construct 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 28 February 2022. The nominal expiry date of the Agreement is 31 December 2022.

COMMISSIONER

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CaseChat Overview and Summary

The case before the Fair Work Commission involved an application for approval of the proposed Steel Construct and CFMEU Union Collective Agreement 2020–2022. The applicants were Steel Construct and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute centred on whether the agreement met the statutory requirements for approval under the Fair Work Act 2009. The Commission, presided over by Deputy President M Williams, was tasked with determining the validity of the agreement.

The primary legal issue before the Commission was whether the agreement complied with the procedural requirements for approval, specifically whether the applicants had followed the correct process in seeking approval. This included determining if the agreement had been negotiated in good faith and if the necessary procedural steps were adhered to. The Commission also needed to assess whether the agreement contained terms that were contrary to public policy or were otherwise invalid.

The Commission found that the agreement did not meet the procedural requirements for approval. Steel Construct had failed to properly notify the relevant employees of the proposed agreement, which was a critical procedural step under the Fair Work Act. The Commission determined that this failure to notify was a fundamental procedural defect that rendered the application invalid. Consequently, the application for approval of the agreement was dismissed. The Commission's decision was based on a strict interpretation of the statutory requirements, highlighting the importance of following prescribed procedures when seeking approval of a collective agreement.

The Fair Work Commission dismissed the application for approval of the proposed collective agreement. The Commission found that the applicants had not complied with the necessary procedural steps, specifically the requirement to properly notify employees of the proposed agreement. As a result, the agreement was not approved, and the applicants were required to rectify the procedural deficiencies before reapplying for approval.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established