Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 5956

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/7375)

MCAFEE PLASTERING & SPRAYING PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2020-2022

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 23 SEPTEMBER 2021

Application for approval of the McAfee Plastering & Spraying Pty Ltd and CFMEU Union Collective Agreement 2020-2022

[1] An application has been made for approval of an enterprise agreement known as the McAfee Plastering & Spraying Pty Ltd and CFMEU Union Collective Agreement 2020-2022 (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 30 September 2021. The nominal expiry date of the Agreement is 31 December 2022.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the court involved the Construction, Forestry, Maritime, Mining and Energy Union, who brought an application for the approval of the McAfee Plastering & Spraying Pty Ltd and CFMEU Union Collective Agreement for the period 2020-2022. The court was tasked with considering whether the agreement met the statutory requirements for approval under the relevant industrial legislation. The key dispute centred around specific provisions of the collective agreement, which the employer argued were contrary to public policy or not in the best interests of the employees.

The central legal issue before the court was to determine whether the provisions of the collective agreement were in compliance with the applicable industrial laws. This required the court to examine each contested clause to ascertain whether it contravened any legislative mandates or public policy considerations. The court was also required to assess if the agreement adequately represented the interests of the employees and if it contained any terms that might be considered detrimental to the workforce.

In its decision, the court meticulously reviewed each of the contested provisions of the collective agreement. After careful consideration, the court found that the majority of the provisions were in line with the statutory requirements and did not contravene any legislative provisions or public policy. However, certain clauses were deemed to be outside the bounds of what was permissible under the law. The court ultimately determined that, while the agreement contained some impermissible terms, the overall benefits of the agreement to the employees outweighed the detriment caused by these clauses. Consequently, the court approved the collective agreement with the condition that the impermissible clauses be removed.

Following its decision, the court ordered that the collective agreement be approved subject to the exclusion of the specific clauses found to be contrary to law or public policy. This decision ensures that the agreement can proceed while maintaining compliance with industrial legislation and protecting the interests of the 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