DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/6252)

THE TRUSTEE FOR TREGENT TRUST T/AS CRANES 4 HIRE 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, 28 JULY 2021

Application for approval of THE TRUSTEE FOR TREGENT TRUST T/AS CRANES 4 HIRE 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 TRUSTEE FOR TREGENT TRUST T/AS CRANES 4 HIRE 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 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 4 August 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

The case involved an application for the approval of the Trust for Tregent Trust T/as Cranes 4 Hire and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Mobile Crane Hiring Industry Enterprise Agreement 2020-2023. This agreement was contested due to its potential implications on the terms of employment within the mobile crane hiring industry. The Fair Work Commission was the tribunal tasked with determining the validity and fairness of the proposed agreement.

The central legal issues before the tribunal were whether the agreement complied with the Fair Work Act 2009, specifically regarding the provisions that were deemed to be unfair under section 234 of the Act. The tribunal had to consider whether the agreement's provisions, which included terms related to employment conditions, pay rates, and dispute resolution mechanisms, were procedurally and substantively fair. Additionally, the tribunal assessed whether the agreement met the criteria for being a simple, genuine, and independent agreement as required by the legislation.

The tribunal found that the agreement did not meet the criteria for approval. It was determined that certain provisions within the agreement were unfair under section 234 of the Fair Work Act, as they imposed conditions that were detrimental to the employees. The tribunal emphasised that the provisions must not only be procedurally fair but also substantively fair, taking into account the broader impact on the employees' rights and interests. The tribunal's decision highlighted the importance of ensuring that enterprise agreements do not unfairly disadvantage employees and must be genuinely negotiated and independently developed.

As a result of the tribunal's findings, the application for the approval of the proposed enterprise agreement was dismissed. The tribunal did not grant the agreement the necessary approval, thereby preventing its implementation in the mobile crane hiring industry. The decision underscores the tribunal's role in ensuring that enterprise agreements are fair and do not compromise the rights and interests of employees.

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