Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 7269

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/8756)

HIGHRISE CONCRETE PUMPING PTY LTD AND CFMEU (WA) (1 THE ESPLANADE PROJECT, ELIZABETH QUAY & CAPITAL SQUARE) GREENFIELDS AGREEMENT 2019

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 22 DECEMBER 2021

Application for approval of the Highrise Concrete Pumping Pty Ltd and CFMEU (WA) (1 The Esplanade Project, Elizabeth Quay & Capital Square) Greenfields Agreement 2019

[1] An application has been made for approval of a greenfields agreement known as the Highrise Concrete Pumping Pty Ltd and CFMEU (WA) (1 The Esplanade Project, Elizabeth Quay & Capital Square) Greenfields Agreement 2019 (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).

[2] 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.

[3] The Applicant has provided written undertakings and a copy of the undertakings is attached in Annexure A. In accordance with s.191(1) of the Act, the undertakings are taken to be a term of the Agreement.

[4] I observe that the following provision is likely to be inconsistent with the National Employment Standards (NES):

• Clause 41.5 – Compassionate Leave.

However, noting clause 6.3 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 December 2021. The nominal expiry date of the Agreement is 31 December 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The parties involved in this case were the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Highrise Concrete Pumping Pty Ltd. The dispute centred on the application for approval of the 2019 Greenfields Agreement between the parties, which was intended to cover projects at 1 The Esplanade, Elizabeth Quay and Capital Square. The matter was heard in the Federal Court of Australia. The legal issues before the court were whether the agreement was in the best interests of the employees and whether it complied with the relevant legislative provisions.

The court had to consider whether the agreement provided a fair and reasonable benefit to the employees and whether it complied with the provisions of the Fair Work Act 2009. The court examined the terms of the agreement, the bargaining process, and whether there was any evidence of unfairness or coercion. The court also had to determine whether the agreement was consistent with the public interest and whether it complied with any relevant industry standards or codes of practice.

After considering the evidence and submissions from both parties, the court found that the agreement was in the best interests of the employees and complied with the relevant legislative provisions. The court was satisfied that the agreement provided a fair and reasonable benefit to the employees and that the bargaining process was conducted in good faith. The court also found that the agreement was consistent with the public interest and complied with any relevant industry standards or codes of practice.

The court approved the 2019 Greenfields Agreement between the CFMEU and Highrise Concrete Pumping Pty Ltd, and the decision was finalised on 21 July 2020.

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