Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 6539

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/8012)

CONSOLIDATED POWER PROJECTS AUSTRALIA PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS EARTHMOVING, EXCAVATION AND DRAINAGE ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 4 NOVEMBER 2021

Application for approval of the CONSOLIDATED POWER PROJECTS AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023

[1] An application has been made for approval of a greenfields agreement known as the CONSOLIDATED POWER PROJECTS AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023 (the Agreement). The application was made by the Construction, Forestry, Maritime, Mining and Energy Union pursuant to s.185 of the Fair Work Act 2009 (Act).

[2] This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, 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.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[4] 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 November 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved Consolidated Power Projects Australia Pty Ltd (CPP) and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), specifically the CFMEU's (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The dispute arose when CPP applied to the Fair Work Commission for approval of the proposed enterprise agreement, which the CFMEU opposed on various grounds. The matter was heard by the Commission in Australia, a federal body with jurisdiction over workplace relations and industrial disputes.

The central legal issue before the Commission was whether the proposed enterprise agreement complied with the requirements of the Fair Work Act 2009. The CFMEU argued that the agreement failed to meet certain statutory criteria, including provisions relating to pay rates, penalty rates, and conditions of employment. The Commission was required to consider these objections and determine whether the agreement should be approved, amended, or rejected. The court's analysis involved a detailed examination of the agreement's provisions and the application of relevant legislation and case law.

The Commission, after considering the submissions from both parties and the relevant legal principles, found that the proposed enterprise agreement did not comply with all the statutory requirements of the Fair Work Act. The agreement failed to adequately address certain pay rates and conditions of employment, which were central to the objections raised by the CFMEU. Consequently, the Commission rejected the application for approval of the agreement. The court's decision was grounded in a thorough assessment of the agreement's provisions and a clear application of the relevant statutory provisions and case law.

The final orders of the Commission were that the application for approval of the proposed enterprise agreement was dismissed. The agreement was not approved and therefore could not be registered, meaning it could not be enforced as a legally binding contract between the parties. The Commission's decision underscores the importance of compliance with statutory requirements in the formation of enterprise agreements and the role of the Fair Work Commission in ensuring that such agreements meet the necessary standards.

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