Construction, Forestry, Maritime, Mining and Energy Union

[2021] FWCA 6565

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/8057)

X-CEL PTY LTD AND CFMEU MINOR CIVIL CONSTRUCTION
UNION COLLECTIVE AGREEMENT 2021 - 2025

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

Application for approval of the X-Cel Pty Ltd and CFMEU Minor Civil Construction Union Collective Agreement 2021 - 2025

[1] An application has been made for approval of a greenfields agreement known as the X-Cel Pty Ltd and CFMEU Minor Civil Construction Union Collective Agreement 2021 - 2025 (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 30 June 2025.

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 the X-Cel Pty Ltd and CFMEU Minor Civil Construction Union Collective Agreement 2021-2025. The application was brought by the Construction, Forestry, Maritime, Mining and Energy Union, which sought to have the agreement approved under the Fair Work Act 2009. The dispute centred on whether the agreement met the necessary requirements under the Act for it to be formally approved.

The central legal issue the Commission had to decide was whether the proposed agreement was a "single interest employer agreement" as defined in the Fair Work Act. This required the Commission to consider whether the agreement satisfied the criteria set out in the Act, including whether it covered only employees of a single employer and whether it provided for the resolution of any dispute between the parties. Another aspect was whether the agreement complied with the good faith bargaining requirements, ensuring that the terms and conditions of employment were fairly negotiated.

In delivering its decision, the Commission found that the agreement met the definition of a single interest employer agreement and was thus eligible for approval. The Commission considered that the agreement was limited to employees of X-Cel Pty Ltd and covered all matters of employment within the company. It also determined that the agreement contained provisions for the resolution of disputes and met the good faith bargaining requirements. Consequently, the Commission approved the agreement under the Fair Work Act.

The Fair Work Commission approved the X-Cel Pty Ltd and CFMEU Minor Civil Construction Union Collective Agreement 2021-2025, subject to the terms and conditions set out in the agreement. The approval was effective from the date of the decision, ensuring that the agreement would govern the employment conditions of the employees covered by it for the duration of the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established