Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 6562

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/8039)

SOUTHSIDE EMPLOYER PTY LTD / CFMEU COLLECTIVE AGREEMENT 2019-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 5 NOVEMBER 2021

Application for approval of the Southside Employer Pty Ltd / CFMEU Collective Agreement 2019-2023

[1] An application has been made for approval of a greenfields agreement known as the Southside Employer 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 12 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 matter before the Fair Work Commission concerned an application for the approval of a collective agreement between Southside Employer Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for the period 2019-2023. The dispute centred on the validity and enforceability of certain clauses within the agreement, particularly those pertaining to employee entitlements and working conditions. The Fair Work Commission, in its capacity as the industrial relations tribunal, was tasked with determining whether the agreement met the requirements of the Fair Work Act 2009.

The central legal issues before the Commission involved assessing whether the collective agreement contained any terms that contravened the provisions of the Fair Work Act or that were otherwise invalid. Specifically, the Commission needed to determine if the terms regarding employee leave, overtime, and other workplace conditions were consistent with the statutory protections and entitlements provided under the Act. The Commission also had to consider whether the agreement was made in good faith and whether it provided adequate protection for the interests of the employees involved.

In its decision, the Commission carefully reviewed the provisions of the collective agreement, focusing on the contentious clauses that had been identified. The Commission noted that while some of the terms in the agreement were consistent with the statutory framework, others required modification to ensure compliance with the Fair Work Act. The Commission found that the agreement, as presented, did not fully align with the legislative requirements in certain respects, particularly in relation to the provisions on employee leave and overtime. Consequently, the Commission made specific amendments to the agreement to rectify these issues, ensuring that the terms were now compliant with the Act. The amended agreement was subsequently approved by the Commission, which concluded that it met all necessary legal standards and provided adequate protections for the employees.

The final orders of the Commission included the approval of the collective agreement, subject to the amendments made by the Commission to correct the non-compliant terms. The Commission's decision ensured that the agreement was enforceable and that the rights and obligations of both the employer and the employees were clearly defined and legally sound.

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