Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 55

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2021/9266)

BH Labour Pty Ltd / CFMEU Collective Agreement 2019-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 12 JANUARY 2022

Application for approval of the BH Labour Pty Ltd / CFMEU Collective Agreement 2019-2023

An application has been made for approval of a greenfields agreement known as the BH Labour Pty Ltd / CFMEU Collective Agreement 2019-2023 (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 19 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 matter involved an application for approval of a collective agreement between the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and BH Labour Pty Ltd, covering the period 2019-2023. The application was brought before the Fair Work Commission, which has jurisdiction to approve such agreements if they meet certain criteria under the Fair Work Act 2009. The CFMEU, representing the employees, sought approval of the agreement, while BH Labour Pty Ltd, the employer, also participated in the proceedings.

The primary legal issue before the Commission was whether the collective agreement met the statutory requirements for approval, including that it did not provide for payments or benefits that were against the public interest or that it did not adversely affect employees not covered by the agreement. Additionally, the Commission had to assess whether the agreement complied with the general protections and minimum standards set out in the Fair Work Act. The CFMEU argued that the agreement was fair and balanced, while BH Labour Pty Ltd maintained that certain provisions should not be approved due to potential adverse effects on non-unionised employees.

In its decision, the Commission found that the collective agreement was generally consistent with the provisions of the Fair Work Act and did not contain any provisions that were against the public interest. The Commission noted that while some provisions might potentially affect non-unionised employees, they did not do so in a way that was unfair or unreasonable. The Commission was satisfied that the agreement provided for appropriate protections and benefits for the employees covered by it and that it did not impose any unreasonable restrictions on the employer. Consequently, the Commission approved the agreement, subject to certain minor modifications to ensure compliance with the Act.

The Fair Work Commission approved the collective agreement between the CFMEU and BH Labour Pty Ltd, with minor modifications to ensure compliance with the Fair Work Act. The Commission's decision confirmed that the agreement met the statutory criteria for approval, providing appropriate protections and benefits for the employees while not adversely affecting non-unionised employees or being against the public interest.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established