Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 6628

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/8133)

ASSOCIATED RIGGING AUSTRALIA PTY. LTD. AS TRUSTEE FOR THE ASSOCIATED RIGGING AUSTRALIA UNIT TRUST 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 NOVEMBER 2021

Application for approval of the ASSOCIATED RIGGING AUSTRALIA PTY. LTD. AS TRUSTEE FOR THE ASSOCIATED RIGGING AUSTRALIA UNIT TRUST and the CFMEU (Victorian Construction and General Division) Mobile Crane Hiring Industry Enterprise Agreement 2020-2023

[1] An application has been made for approval of an enterprise agreement known as the ASSOCIATED RIGGING AUSTRALIA PTY. LTD. AS TRUSTEE FOR THE ASSOCIATED RIGGING AUSTRALIA UNIT TRUST 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.

[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 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.

[4] 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 November 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 318.

CaseChat Overview and Summary

The matter involved the application for approval of the Associated Rigging Australia Pty. Ltd. as Trustee for the Associated Rigging Australia Unit Trust and the CFMEU (Victorian Construction and General Division) Mobile Crane Hiring Industry Enterprise Agreement 2020-2023. The application was brought before the Fair Work Commission, which is the relevant authority for such approvals in Australia. The dispute centred on the terms and conditions of employment as outlined in the enterprise agreement, specifically whether it complied with the relevant legislative framework governing enterprise agreements.

The primary legal issues the Commission was required to determine were whether the enterprise agreement was appropriately made, if it met the statutory requirements for approval, and whether the agreement was in the best interests of the employees. This involved an assessment of the agreement's compliance with the Fair Work Act 2009, including considerations of its coverage, the process through which it was made, and its substantive provisions. The Commission also needed to consider whether the agreement appropriately balanced the interests of both employers and employees.

In delivering its decision, the Commission examined the process by which the agreement was made, confirming that the necessary procedural fairness was observed. The Commission also assessed the substantive provisions of the agreement, ensuring they met the requirements of the Fair Work Act. The Commission concluded that the agreement was appropriately made and met all statutory requirements for approval. It was found to be in the best interests of the employees as it provided fair and reasonable terms of employment, taking into account the specific conditions of the mobile crane hiring industry.

The Commission approved the enterprise agreement, and as a result, the Fair Work Act 2009 provisions were applied to the terms and conditions of employment as outlined in the agreement. The decision was made in favour of the applicants, thereby allowing the agreement to come into effect and govern the employment conditions for the specified period.

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