Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 6476

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/7912)

GARNER & WHEELER LIFTING SERVICES PTY. LTD. AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) MOBILE CRANE HIRING INDUSTRY ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 29 OCTOBER 2021

Application for approval of the GARNER & WHEELER LIFTING SERVICES PTY. LTD. 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 GARNER & WHEELER LIFTING SERVICES PTY. LTD. 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 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.

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Garner & Wheeler Lifting Services Pty Ltd, applied to the Fair Work Commission for approval of a proposed enterprise agreement with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The proposed agreement, titled the "Garner & Wheeler Lifting Services Pty Ltd and the CFMEU (Victorian Construction and General Division) Mobile Crane Hiring Industry Enterprise Agreement 2020-2023", was contested by the CFMEU. The dispute was heard in the Fair Work Commission, which is responsible for handling workplace relations matters under Australian law.

The primary legal issue before the Commission was whether the proposed agreement met the criteria for approval under the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement contained all the mandatory terms and conditions, was free from prohibited content, and met the genuine agreement test. The genuine agreement test requires that the agreement be genuinely negotiated and not merely a product of one party's dictation. Additionally, the Commission considered whether the agreement provided for fair and reasonable terms and conditions of employment.

After reviewing the submissions and evidence from both parties, the Commission found that the proposed agreement met all the statutory requirements for approval. The Commission concluded that the agreement had been genuinely negotiated and contained all the mandatory terms and conditions. Furthermore, the Commission determined that the terms and conditions were fair and reasonable, taking into account the specific circumstances of the mobile crane hiring industry. Consequently, the Commission approved the proposed agreement.

The Fair Work Commission approved the Garner & Wheeler Lifting Services Pty Ltd and the CFMEU (Victorian Construction and General Division) Mobile Crane Hiring Industry Enterprise Agreement 2020-2023. This decision underscores the importance of genuine negotiation and compliance with statutory requirements in the formation of enterprise agreements. The approval of this agreement provides a framework for the terms and conditions of employment within the mobile crane hiring industry in Victoria, ensuring fairness and reasonableness for both employers and employees.

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