Construction, Forestry, Maritime, Mining and Energy Union - [2022] FWCA 267

[2022] FWCA 267 [Note: An appeal pursuant to s.604 (C2022/1233) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2021/8400)

BESIX Watpac and CFMEU Minor Civil Construction Union Collective Agreement 2021 - 2025

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 1 FEBRUARY 2022

Application for approval of the BESIX Watpac and CFMEU Minor Civil Construction Union Collective Agreement 2021-2025 – AWU objection – whether agreement relates to a genuine new enterprise – identity and novelty of the enterprise – whether CFMMEU entitled to represent a majority of employees who will be covered – nature of requirement in s 187(5)(a)

The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has made an application under s 185 of the Fair Work Act 2009 (the Act) for approval of a greenfields agreement, the BESIX Watpac and CFMEU Minor Civil Construction Union Collective Agreement 2021-2025 (Agreement). The Agreement covers Watpac Constructions Pty Ltd (company), the CFMMEU, and employees of the company falling within the coverage provision in clause 4.

The company’s declaration in support of the application states that the Agreement covers a genuine new enterprise that the employer is establishing or proposing to establish. No details of this business are contained in the declaration, however the submission of the company in the proceeding was that the new enterprise is the business or activity of undertaking ‘marine and civil’ engineering work, part of which involves the construction of a bridge at Kangaroo Point in Brisbane. The company’s declaration states that it has not employed any workers who will be covered by the Agreement. The CFMMEU filed a form F21 declaration in connection with the application, stating that it is entitled to represent a majority of employees who will be covered by the Agreement, in relation to work to be performed under the Agreement. The Agreement is expressed to cover the CFMMEU and was signed by the union and the company on 16 November 2021. The Agreement was therefore made on that day (see s 182(3)).

The Australian Workers Union (AWU) sought to be heard in relation to the application on the basis that it is a union entitled under its registered rules to represent workers in the civil construction sector and that it was concerned that the Agreement did not meet the requirements of a greenfields agreement. The company and the CFMMEU opposed the AWU’s request to be heard. In a decision given on transcript at the conclusion of a telephone mention, I decided that I would inform myself in relation to the application by hearing from the AWU. In accordance with my subsequent directions, the AWU filed an initial outline of its objection. The company then filed submissions and a witness statement (and later a supplementary statement) of Mr Craig Dearling, its national workplace relations manager. The CFMMEU lodged submissions in support of the approval of the Agreement. The AWU then filed its submissions, together with witness…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Construction, Forestry, Maritime, Mining and Energy Union and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] FWCA 267
Decision Date: 1 FEBRUARY 2022

CaseChat Overview and Summary

The case involved an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) for the approval of the BESIX Watpac and CFMEU Minor Civil Construction Union Collective Agreement 2021-2025. The Australian Workers' Union (AWU) raised an objection to the application, arguing that the agreement did not relate to a genuine new enterprise and that the CFMMEU was not entitled to represent a majority of the employees who would be covered by the agreement. The dispute was heard in the Fair Work Commission.

The central legal issues were whether the collective agreement related to a genuine new enterprise as required by section 187(5)(a) of the Fair Work Act 2009, and whether the CFMMEU was entitled to represent a majority of the employees who would be covered by the agreement. The court had to determine the identity and novelty of the enterprise and whether the union's claim to represent the employees was valid.

The Fair Work Commission held that the CFMMEU was entitled to represent the employees in question and that the enterprise for which the agreement was proposed was genuinely new. The Commission noted that the enterprise was a new entity formed by the merger of two companies and that the agreement covered employees who had not previously been covered by a collective agreement. The Commission found that the requirement in section 187(5)(a) of the Fair Work Act was satisfied because the agreement related to a new enterprise, and the union's claim to represent the employees was valid.

The Fair Work Commission approved the application for the approval of the BESIX Watpac and CFMEU Minor Civil Construction Union Collective Agreement 2021-2025. The Commission found that the CFMMEU was entitled to represent the employees and that the agreement related to a genuine new enterprise. The AWU's objection was dismissed.

Orders