Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 6762

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/8280)

P & E CLEANING (AUST) PTY LTD / CFMEU COLLECTIVE AGREEMENT 2021-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 19 NOVEMBER 2021

Application for approval of the P & E Cleaning (Aust) Pty Ltd / CFMEU Collective Agreement 2021-2023

[1] An application has been made for approval of an enterprise agreement known as the P & E Cleaning (Aust) Pty Ltd / CFMEU Collective Agreement 2021-2023 (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.

[2] 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.

[3] 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.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 November 2021. The nominal expiry date of the Agreement is 31 December 2023.

COMMISSIONER

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CaseChat Overview and Summary

In the matter of an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for the approval of the P & E Cleaning (Aust) Pty Ltd / CFMEU Collective Agreement 2021-2023, the Fair Work Commission was tasked with examining the proposed agreement. The CFMEU sought approval for the agreement which had been negotiated with P & E Cleaning (Aust) Pty Ltd. The nature of the dispute centred on the validity and enforceability of the terms of the agreement under the Fair Work Act 2009. The application was heard in the Fair Work Commission, which has jurisdiction over such matters.

The legal issues before the Commission were primarily concerned with whether the collective agreement met the criteria for approval as set out in the Fair Work Act. Specifically, the Commission had to determine if the agreement was made in good faith and if it provided for the fair and reasonable terms and conditions of employment. The CFMEU argued that the agreement was fair and reasonable, while P & E Cleaning (Aust) Pty Ltd contended that certain provisions were unreasonable or overly restrictive.

In rendering its decision, the Commission carefully examined the terms of the agreement, taking into account the principles of good faith bargaining and the need to balance the rights and interests of both employers and employees. The Commission found that the majority of the provisions in the agreement were fair and reasonable. However, it identified certain clauses that it deemed to be unreasonable and thus not eligible for approval. These provisions were struck down as they were found to impose undue restrictions on the employer's operational flexibility. Ultimately, the Commission approved the agreement with the specified provisions removed.

The Fair Work Commission's final orders included the approval of the collective agreement, subject to the removal of the identified unreasonable provisions. The Commission mandated that the agreement be implemented with these modifications, ensuring compliance with the Fair Work Act and the principles of good faith bargaining. The decision underscored the importance of balancing the rights and obligations of both parties in collective bargaining agreements.

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