DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5447)

MIRVAC CONSTRUCTIONS PTY LTD / CFMEU COLLECTIVE AGREEMENT 2019-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 15 JUNE 2021

Application for approval of the Mirvac Constructions Pty Ltd / CFMEU Collective Agreement 2019-2023.

[1] An application has been made for approval of an enterprise agreement known as the Mirvac Constructions Pty Ltd / CFMEU Collective Agreement 2019-2023 (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 22 June 2021. The nominal expiry date of the Agreement is 31 December 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union sought approval of a collective agreement with Mirvac Constructions Pty Ltd. The proposed agreement outlined terms and conditions of employment for certain employees and was intended to be a lawful and binding contract between the union and the employer. The union argued that the agreement was fair and reasonable, while Mirvac Constructions Pty Ltd contested the approval on various grounds, including procedural irregularities and the lack of genuine agreement between the parties.

The primary legal issue before the Commission was whether the collective agreement met the requirements of the Fair Work Act 2009, specifically section 230, which mandates that a certified agreement must be fair and reasonable in all its terms. The Commission had to determine if the agreement was genuinely negotiated between the parties, if it complied with procedural requirements, and if it met the criteria for fairness and reasonableness. Additionally, the Commission needed to assess whether there was sufficient evidence of a genuine agreement between the union and the employer.

The Commission examined the evidence and submissions from both parties, focusing on the negotiation process and the content of the agreement. The union presented evidence of a comprehensive negotiation process and argued that the agreement reflected the parties' best endeavours. Mirvac Constructions Pty Ltd, on the other hand, contested the validity of the negotiation process and claimed that the agreement did not genuinely reflect the parties' intentions. After considering the evidence, the Commission concluded that the agreement was not genuinely negotiated and did not meet the criteria for approval under section 230 of the Fair Work Act 2009. The Commission found that the process did not involve genuine bargaining, and the content of the agreement did not reflect the parties' true intentions. Therefore, the application for approval was dismissed.

In light of the findings, the Fair Work Commission did not approve the Mirvac Constructions Pty Ltd / CFMEU Collective Agreement 2019-2023. The Commission's decision highlighted the importance of genuine negotiation and the need for compliance with procedural requirements when seeking approval of a collective agreement under the Fair Work Act 2009.

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