Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 5996

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/7318)

KELLER PTY LTD /CFMEU SOUTH AUSTRALIA GREENFIELDS ENTERPRISE AGREEMENT 2021

Building, metal and civil construction industries
DEPUTY PRESIDENT BOYCE	SYDNEY, 27 SEPTEMBER 2021

Application for approval of the KELLER PTY LTD /CFMEU South Australia Greenfields Enterprise Agreement 2021

[1] An application has been made for approval of an enterprise agreement to be known as the KELLER PTY LTD /CFMEU South Australia Greenfields Enterprise Agreement 2021 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Keller Pty Ltd (Employer). The Agreement is a greenfields agreement.

[2] The Employer has provided written undertakings dated 22 September 2021. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Building and Construction General Onsite Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

[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 to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

[4] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

[5] I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union applied for the approval of the KELLER PTY LTD / CFMEU South Australia Greenfields Enterprise Agreement 2021. The union sought the Commission's determination that the agreement met the requirements of the Fair Work Act 2009 for registration and enforcement. The dispute centred on whether the agreement complied with the provisions of the Act and the procedural fairness afforded to the parties during the bargaining process.

The primary legal issues before the Commission were whether the agreement was genuinely negotiated between the parties and whether it contained the necessary elements as stipulated by the Act. The Commission had to assess if the union had fairly represented its members in the negotiation process and if the agreement contained the requisite good faith bargain. Additionally, the Commission considered whether the agreement adhered to the provisions of the Fair Work (Registered Organisations) Act 2009, including the disclosure requirements and the fairness of the negotiation process.

The Commission found that the union had genuinely negotiated the agreement with Keller and that the agreement contained the necessary good faith bargain. The Commission determined that the union had fairly represented its members throughout the negotiation process and that the agreement met the requirements of the Fair Work Act 2009. The Commission also found that the agreement complied with the disclosure requirements under the Fair Work (Registered Organisations) Act 2009. The Commission approved the agreement, finding that it was fair and reasonable in all its terms and that it met the requirements of the Act.

The Fair Work Commission approved the KELLER PTY LTD / CFMEU South Australia Greenfields Enterprise Agreement 2021, determining that it was a genuine bargain and met the requirements of the Fair Work Act 2009. The agreement was registered and enforceable, and the Commission found that the union had fairly represented its members in the negotiation process. The Commission's decision provides clarity for employers and employees in the construction industry, ensuring that the agreement is fair and reasonable and meets the legal requirements for registration and enforcement.

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