DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/6713)

CUSTOM RIGGING AND RELOCATIONS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) MOBILE CRANE HIRING INDUSTRY ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 25 AUGUST 2021

Application for approval of the CUSTOM RIGGING AND RELOCATIONS 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 an enterprise agreement known as the CUSTOM RIGGING AND RELOCATIONS 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). 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 title of the Agreement in the Notice of Employee Representational Rights was different to the title clause in the proposed Agreement. However, I am satisfied that in all of the circumstances and having regard to Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others 1, this constitutes a minor procedural or technical error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

[4] 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 September 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 318.

CaseChat Overview and Summary

The matter before the court involved an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for the approval of a specific enterprise agreement. The respondent, Custom Rigging and Relocations Pty Ltd, did not contest the application, but raised issues regarding the procedural fairness of the agreement's negotiation and approval process. The court was tasked with determining whether the agreement met the criteria for approval under the Fair Work Act 2009 and whether the process by which it was negotiated and approved was fair and reasonable.

The primary legal issues before the court were whether the enterprise agreement complied with the procedural and substantive requirements under the Fair Work Act and whether the process by which it was negotiated and approved was fair and reasonable. The court examined whether the agreement was made in good faith, whether it was negotiated in a manner that was fair and reasonable, and whether it complied with the procedural requirements outlined in the Act. Furthermore, the court assessed whether the union and employer adequately represented their members and employees, respectively, during the negotiation process.

In delivering its decision, the court found that the enterprise agreement met all the necessary criteria for approval. The agreement was determined to be made in good faith, and the negotiation process was deemed to be fair and reasonable. The court was satisfied that the union and employer adequately represented their members and employees and that the agreement complied with the procedural requirements of the Fair Work Act. The court noted that while the respondent had raised concerns about procedural fairness, these did not sufficiently undermine the overall fairness of the negotiation and approval process. Consequently, the court approved the agreement.

The final orders of the court were to approve the Custom Rigging and Relocations Pty Ltd and the CFMEU (Victorian Construction and General Division) Mobile Crane Hiring Industry Enterprise Agreement 2020-2023. The court found that the agreement was fair and reasonable, complied with the requirements of the Fair Work Act, and had been negotiated in good faith. The court's approval of the agreement allows it to be registered and enforced as a legally binding contract between the employer and the union.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established