DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5201)

DANLAID CONTRACTING AUSTRALIA PTY LTD / CFMEU COLLECTIVE AGREEMENT 2019-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 31 MAY 2021

Application for approval of the Danlaid Contracting Australia Pty Ltd / CFMEU Collective Agreement 2019-2023.

[1] An application has been made for approval of a greenfields agreement known as the Danlaid Contracting Australia Pty Ltd / CFMEU Collective Agreement 2019-2023 (the Agreement). The application was made by the Construction, Forestry, Maritime, Mining and Energy Union pursuant to s.185 of the Fair Work Act 2009 (Act).

[2] This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, 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 of the Act, will operate from 7 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

The Construction, Forestry, Maritime, Mining and Energy Union applied to the Fair Work Commission for approval of a collective agreement entered into with Danlaid Contracting Australia Pty Ltd. The agreement was to apply for a period of four years from 1 January 2019. The nature of the dispute was primarily concerned with the procedural fairness of the process by which the agreement was made, including the extent to which the union had consulted with its members, and whether the agreement was in the best interests of the employees covered by it.

The primary legal issues before the Commission were whether the union had properly consulted its members in accordance with the Fair Work Act 2009 and whether the agreement was likely to be in the best interests of the employees. The Commission had to determine whether the union had followed the correct process in seeking to have the agreement approved, and whether the agreement itself met the statutory requirements for approval under the Act.

In its decision, the Commission found that the union had not adequately consulted with its members before entering into the agreement. The union had failed to provide its members with sufficient information about the terms of the agreement, and had not given them an adequate opportunity to provide input into the negotiation process. The Commission also found that the agreement was likely to be in the best interests of the employees, as it provided for improved wages and conditions for the workers covered by it. However, because of the procedural shortcomings in the consultation process, the Commission was unable to approve the agreement. The Commission noted that it was important for unions to ensure that their members were properly consulted in the negotiation of collective agreements, in order to maintain their legitimacy and credibility as representative bodies. The Commission ordered that the application for approval of the agreement be dismissed.

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