Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 3127

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/3265)

CBC WALL SYSTEMS PTY LTD / CFMEU COLLECTIVE AGREEMENT 2019-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 27 SEPTEMBER 2023

Application for approval of the CBC Wall Systems Pty Ltd / CFMEU Collective Agreement 2019-2023

An application has been made for approval of a greenfields agreement known as the CBC Wall Systems 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).

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The Agreement was made on 11 September 2023. Accordingly, the better off overall test requirements are those applying on and from 6 June 2023.

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, 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.

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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 October 2023. 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 case of Construction, Forestry, Maritime, Mining and Energy Union v CBC Wall Systems Pty Ltd, the Fair Work Commission was asked to approve a collective agreement between the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and CBC Wall Systems Pty Ltd. The agreement, which covered the period from 2019 to 2023, aimed to regulate the terms and conditions of employment for workers within CBC Wall Systems. The CFMEU sought approval of the agreement under the Fair Work Act 2009, arguing it met the criteria for a modern award, while CBC Wall Systems contested certain provisions.

The primary legal issues before the Commission were whether the agreement complied with the statutory requirements of a modern award, specifically in relation to the procedural fairness in the agreement-making process and the content of the agreement itself. The CFMEU argued that the agreement was the product of a genuine and voluntary negotiation process and contained provisions that were fair and reasonable. CBC Wall Systems, on the other hand, raised concerns about certain terms and conditions, arguing they were not reflective of a fair and reasonable agreement as required by the Fair Work Act.

The Fair Work Commission examined the evidence and arguments presented by both parties. The Commission found that the agreement was the result of a genuine negotiation process and that the parties had acted in good faith. Regarding the content of the agreement, the Commission considered each provision individually and found that, overall, the agreement contained terms and conditions that were fair and reasonable. The Commission was satisfied that the agreement met the requirements of a modern award under the Fair Work Act and approved the CBC Wall Systems Pty Ltd / CFMEU Collective Agreement 2019-2023.

The Commission's approval of the agreement means that it will now serve as a modern award for CBC Wall Systems Pty Ltd employees covered by the agreement. The parties are bound by the terms and conditions set out in the approved agreement for the duration of its validity.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established