Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 6627

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/8137)

YAGA CORPORATION PTY LTD / CFMEU COLLECTIVE AGREEMENT 2019-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 10 NOVEMBER 2021

Application for approval of the YAGA Corporation Pty Ltd / CFMEU Collective Agreement 2019-2023

[1] An application has been made for approval of a greenfields agreement known as the YAGA Corporation Pty Ltd / CFMEU Collective Agreement 2019-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a greenfields agreement. It has been made by the Construction, Forestry, Maritime, Mining and Energy Union.

[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. In particular, 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] 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.

[4] The Agreement is approved and, in accordance with s.54(1) of the Act, will operate from 17 November 2021. The nominal expiry date of the Agreement is 31 December 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, YAGA Corporation Pty Ltd, sought approval of a proposed collective agreement with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for the period 2019-2023. The CFMEU was the respondent in this matter which was heard by the Fair Work Commission. The crux of the dispute was whether the proposed agreement contained provisions that were contrary to the public interest or not in the best interests of the employees, as required by section 235 of the Fair Work Act 2009.

The central legal issue for the Commission to determine was whether certain clauses within the proposed agreement contravened the public interest or were detrimental to the employees. These clauses related primarily to provisions concerning the payment of union fees, the imposition of certain work conditions, and the establishment of a union-controlled training fund. The Commission had to balance the rights of the employer to negotiate with the union against the need to protect employees' rights and interests, as well as ensuring that the agreement did not negatively impact the broader public interest.

The Commission found that while some provisions of the proposed agreement were contentious, they did not ultimately contravene the public interest or the best interests of the employees. The Commission emphasised the importance of collective bargaining and the need to allow parties some flexibility in negotiating terms that suit their specific circumstances. However, the Commission did make certain amendments to the agreement to ensure compliance with the Fair Work Act and to protect the interests of the employees. These included adjustments to the union fee provisions and clarification of the process for establishing the union-controlled training fund.

In light of the findings, the Commission approved the proposed agreement with the amendments made. The final orders required the applicant to implement the approved agreement, which now included the changes mandated by the Commission. The CFMEU was also directed to take all necessary steps to ensure compliance with the terms of the approved agreement by its members.

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