Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 177

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/88)

Moonyah Workforce Pty Ltd and CFMEU (WA) Enterprise Agreement 2020-2024

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 21 JANUARY 2022

Application for approval of the Moonyah Workforce Pty Ltd and CFMEU (WA) Enterprise Agreement 2020-2024

An application has been made for approval of a greenfields agreement known as the Moonyah Workforce Pty Ltd and CFMEU (WA) Enterprise Agreement 2020-2024 (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.

I note that clause 38.5 of the Agreement may be inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 4.5 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

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 January 2022. The nominal expiry date of the Agreement is 31 December 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in this case were the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Moonyah Workforce Pty Ltd. The dispute was regarding the application for the approval of the Moonyah Workforce Pty Ltd and CFMEU (WA) Enterprise Agreement 2020-2024. This matter was heard in the Fair Work Commission. The primary legal issue that the court had to address was whether the enterprise agreement met the requirements under the Fair Work Act 2009 to be approved by the Fair Work Commission.

The Fair Work Commission examined the enterprise agreement and found that it complied with the Fair Work Act 2009. The Commission considered the various provisions within the agreement and whether they met the criteria for approval, such as ensuring employees were not worse off, addressing minimum entitlements, and allowing for the agreement to be varied by the Commission in certain circumstances. The Commission found that the agreement did indeed meet these criteria and therefore the application for approval was granted.

The Commission provided a detailed analysis of the agreement, considering the implications of each clause and the balance of interests between the employer and the employees. The decision was based on the notion that the agreement provided a fair and reasonable outcome for all parties involved. The Fair Work Commission found that the agreement was consistent with the objectives of the Fair Work Act 2009 and did not contravene any provisions of the Act. Therefore, the application for approval of the Moonyah Workforce Pty Ltd and CFMEU (WA) Enterprise Agreement 2020-2024 was approved by the Commission.

The final orders included the approval of the enterprise agreement, with certain provisions to be varied by the Commission in the future if necessary. This decision provided clarity and certainty for both the employer and the employees, ensuring that the agreement would remain in effect while allowing for any necessary adjustments to be made in the future.

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