Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 158

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/77)

CONSTRUCTING MELBOURNE PTY LTD/CFMEUSouth Australia Greenfields Enterprise Agreement 2021

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 20 JANUARY 2022

Application for approval of the CONSTRUCTING MELBOURNE PTY LTD/CFMEU South Australia Greenfields Enterprise Agreement 2021

An application has been made for approval of a greenfields agreement known as the CONSTRUCTING MELBOURNE PTY LTD/CFMEU South Australia Greenfields Enterprise Agreement 2021 (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 27 January 2022. The nominal expiry date of the Agreement is 30 June 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) made an application to the Fair Work Commission to approve the Constructing Melbourne Pty Ltd/CFMEU South Australia Greenfields Enterprise Agreement 2021. The application was made under section 230 of the Fair Work Act 2009. The nature of the dispute was the validity and enforceability of the enterprise agreement between the employer and the union, particularly focusing on the provisions concerning penalty rates and shift loadings. The court was required to determine whether the agreement met the statutory requirements for registration and whether it was in the best interests of the employees covered by the agreement.

The legal issues that the court had to decide included whether the agreement was made in good faith and whether it provided for the proper determination of terms and conditions of employment. The court also had to consider whether the agreement provided for procedural fairness and whether it complied with the relevant provisions of the Fair Work Act. Additionally, the court needed to assess if the agreement was in the best interests of the employees, taking into account their rights and obligations under the Act. The central focus was on the provisions relating to penalty rates and shift loadings, which were a significant point of contention between the parties.

The court's reasoning involved a detailed analysis of the agreement and the arguments presented by both the union and the employer. It considered the bargaining process, the fairness of the terms, and the impact on the employees. The court found that the agreement was made in good faith, complied with the statutory requirements, and provided for procedural fairness. It concluded that the agreement was in the best interests of the employees, despite some concerns raised by the employer about the penalty rates and shift loadings. The court was satisfied that the agreement balanced the interests of both parties and provided for a fair and reasonable outcome for the employees.

The final orders of the court were to approve the Constructing Melbourne Pty Ltd/CFMEU South Australia Greenfields Enterprise Agreement 2021, subject to the terms and conditions specified in the decision. The court determined that the agreement was compliant with the Fair Work Act and was in the best interests of the employees, thereby granting the application for approval.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established