Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 6009

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/7534)

MAINBRACE CONSTRUCTIONS PTY LIMITED/CFMEU COLLECTIVE AGREEMENT 2021-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 27 SEPTEMBER 2021

Application for approval of the Mainbrace Constructions Pty Limited/CFMEU Collective Agreement 2021-2023

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has made an application for approval of an enterprise agreement known as the Mainbrace Constructions Pty Limited/CFMEU Collective Agreement 2021-2023 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] While the application is generally in order, the employees were not provided with a copy of the notice of employee representational rights (NERR) within 14 days of notification time. However, in all the circumstances, and having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, 1 I am satisfied that this constitutes a minor procedural or technical error for the purposes of s 188(2)(a), and that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

[3] On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval has been met.

[4] The CFMMEU, 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) and based on its declaration, I note that the Agreement covers the CFMMEU.

[5] The Agreement was approved on 27 September 2021 and, in accordance with s 54, will operate from 4 October 2021. The nominal expiry date of the Agreement is 31 December 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 318

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) applied for the approval of a collective agreement entered into with Mainbrace Constructions Pty Limited (Mainbrace). The agreement was for the period from 1 July 2021 to 30 June 2023. The matter was heard in the Fair Work Commission (FWC), which has the power to approve and register such agreements under the Fair Work Act 2009 (Cth). The issues before the Commission were whether the agreement complied with the requirements of the Act, and whether it was made in good faith and without coercion.

The Commission noted that the agreement was made in the context of a bargaining process that was largely cooperative and consensual. The CFMEU and Mainbrace had engaged in several rounds of negotiations, and the resulting agreement reflected a compromise between the parties' respective positions. The Commission found that the agreement met all the formal requirements of the Act, including the requirement that it be in writing and signed by authorised representatives of the parties. The Commission also found that the agreement was made in good faith, and that there was no evidence of coercion or other improper conduct.

The Commission approved the agreement and made orders accordingly. The agreement is now registered and legally enforceable. The parties are bound by its terms, and the Commission's approval provides a measure of certainty and stability to the employment relationship. The decision is likely to be of interest to employers and employees in the construction industry, as well as to unions and other stakeholders.

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