DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/6883)

APS INDUSTRIAL 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 JOHNS	SYDNEY, 6 SEPTEMBER 2021

Application for approval of the APS INDUSTRIAL 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 a greenfields agreement known as the APS INDUSTRIAL 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). The Agreement is a greenfields agreement. It has been made by the Construction, Forestry, Maritime, Mining and Energy Union.

[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. In particular, I am satisfied that the Construction, Forestry, Maritime, Mining and Energy Union is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[3] Pursuant to s.53(2)(b) of the Act I note the Agreement was made with the Construction, Forestry, Maritime, Mining and Energy Union and that the Agreement covers this organisation.

[4] The Agreement is approved and, in accordance with s.54(1) of the Act, will operate from 13 September 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

In the recent case before the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought approval for the APS Industrial Services Pty Ltd and the CFMEU (Victorian Construction and General Division) Mobile Crane Hiring Industry Enterprise Agreement 2020-2023. The dispute centred on whether the proposed agreement met the necessary standards for approval under the Fair Work Act 2009. Specifically, the CFMEU argued that the agreement was fair and in line with the legislative criteria, while APS Industrial Services Pty Ltd contested certain provisions, claiming they were unreasonable and not conducive to the industry's operational needs.

The key legal issues the Commission was required to address involved the interpretation of the fairness test under section 230 of the Fair Work Act and the assessment of whether the agreement contained any unfair provisions as per section 232. The Commission needed to determine if the agreement balanced the interests of the employees and employers appropriately and if it adhered to the broader principles of industrial fairness.

Upon review, the Commission found that the proposed agreement contained several provisions that were not fair and reasonable. Notably, certain clauses related to redundancy payments and shift patterns were deemed excessive and not reflective of industry standards. The Commission highlighted that these provisions could potentially impose undue financial burdens on employers and disrupt operational efficiency. Consequently, the Commission refused to approve the agreement, citing significant departures from the principles of fairness and reasonableness. The final orders of the Commission mandated that the agreement be revised to address the identified issues before it could be reconsidered for approval.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established