Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 44

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2021/9181)

KNOWLES CRANES PTY LTD and the CFMEU (Victorian Construction and General Division) Mobile Crane Hiring Industry Enterprise Agreement 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 10 JANUARY 2022

Application for approval of the KNOWLES CRANES PTY LTD and the CFMEU (Victorian Construction and General Division) Mobile Crane Hiring Industry Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the KNOWLES CRANES PTY LTD and the CFMEU (Victorian Construction and General Division) Mobile Crane Hiring Industry Enterprise Agreement 2020-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Construction, Forestry, Maritime, Mining and Energy Union. The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

The title of the Agreement in the Notice of Employee Representational Rights was different to the title clause in the proposed Agreement. However, I am satisfied that in all of the circumstances and having regard to Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[1], this constitutes a minor procedural or technical error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

The Construction, Forestry, Maritime, Mining and Energy Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 January 2022. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for the approval of the Mobile Crane Hiring Industry Enterprise Agreement 2020-2023 between the union and Knowles Cranes Pty Ltd. The agreement sought to establish terms and conditions of employment for mobile crane operators and technicians employed in the mobile crane hiring industry. The central issue before the Commission was whether the agreement met the statutory criteria for approval under the Fair Work Act 2009. This included assessing whether the agreement provided for genuine bargaining, was free from prohibited content, and complied with the relevant minimum standards.

The Fair Work Commission commenced its analysis by confirming that both the union and the employer had genuinely bargained the agreement. The Commission found that the process was conducted in good faith, with both parties negotiating in a manner consistent with the principles of freedom of association and collective bargaining. The next consideration was whether the agreement contained any provisions that were prohibited under the Fair Work Act. The Commission found that the agreement did not contain any unlawful content and was free from prohibited matters such as discrimination or adverse action clauses. The final aspect of the review was to ensure that the agreement provided for terms and conditions that were not less favourable than the relevant minimum standards prescribed by the National Employment Standards and other safety and leave provisions. The Commission concluded that the agreement did not fall below these minimum standards and was therefore fair and reasonable.

In light of the findings, the Fair Work Commission approved the Mobile Crane Hiring Industry Enterprise Agreement 2020-2023. The approval was based on the determination that the agreement had been genuinely bargained, contained no prohibited content, and met all minimum standards for employment conditions. This decision ensures that the terms of employment for mobile crane operators and technicians are regulated by a fair and lawful agreement that reflects the negotiated outcomes of the parties involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established