Construction, Forestry, Maritime, Mining and Energy Union

[2021] FWCA 5865

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/7326)

DOMINION GLOBAL PTY LTD, EMPLOYEES AND THE CFMMEU AGREEMENT 2021-2023

Building, metal and civil construction industries
COMMISSIONER O'NEILL	MELBOURNE, 20 SEPTEMBER 2021

Application for approval of the Dominion Global Pty Ltd, Employees and the CFMMEU Agreement 2021-2023

[1] The Construction, Forestry, Maritime, Mining and Energy Union has applied for approval of an enterprise agreement known as the Dominion Global Pty Ltd, Employees and the CFMMEU Agreement 2021-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and 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] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 20.4.4 – Instant Dismissal;

• Clause 33 – Annual Leave; and

• Clause 38(d) – Public Holidays and Building Industry Picnic Day.

However, noting clause 7 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 September 2021. The nominal expiry date of the Agreement is 31 December 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and Dominion Global Pty Ltd, which sought approval of an industrial agreement for the period 2021-2023. The application was brought to the Fair Work Commission to ensure the agreement met all legal requirements for approval and to address any potential disputes that might arise from its terms. The central issue for the Commission was whether the agreement complied with the provisions of the Fair Work Act 2009, specifically focusing on the procedural fairness and the rights of the employees.

The court examined whether the process followed in negotiating and finalising the agreement was fair and whether the agreement contained terms that would be deemed unfair under the Act. The Commission also had to consider whether the agreement provided for appropriate dispute resolution mechanisms and whether it adequately protected the rights of the employees. Furthermore, the Commission needed to determine if the agreement adhered to the principles of good faith bargaining and if it was made in good faith.

The Fair Work Commission found that the agreement met all the legal requirements for approval. The Commission determined that the negotiation process was fair, and the agreement contained terms that were not unfair. The Commission was satisfied that the agreement included appropriate dispute resolution mechanisms and adequately protected the rights of the employees. Additionally, the Commission concluded that the agreement was made in good faith and complied with the principles of good faith bargaining. Consequently, the Commission approved the agreement.

The Fair Work Commission approved the CFMMEU Agreement 2021-2023, confirming that it met all necessary legal criteria for approval. The Commission's decision was based on a thorough examination of the negotiation process, the terms of the agreement, and its compliance with the Fair Work Act 2009. This approval ensures that the agreement can be implemented without the risk of future legal challenges regarding its validity.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established