Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 3006

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/3114)

TURIN AUS HOLDINGS PTY LTD / CFMEU COLLECTIVE AGREEMENT 2019-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 18 SEPTEMBER 2023

Application for approval of the Turin Aus Holdings Pty Ltd / CFMEU Collective Agreement 2019-2023

An application has been made for approval of a greenfields agreement known as the Turin Aus Holdings 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 4 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 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, 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 25 September 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

The case involved an application by Turin Aus Holdings Pty Ltd to the Fair Work Commission for the approval of a collective agreement with the Construction, Forestry, Maritime, Mining and Energy Union. The application was made under the Fair Work Act 2009, which provides a process for the approval of enterprise agreements that are intended to operate outside of the safety net of the national minimum wage and conditions. The Fair Work Commission is the body responsible for approving such agreements.

The legal issues before the Commission were whether the proposed agreement met the requirements for approval under the Fair Work Act. Specifically, the Commission had to consider whether the agreement provided for terms and conditions that were no less favourable than the national safety net and whether it complied with the formal requirements for approval, such as the provision of a copy of the agreement to all employees and the holding of a meeting to discuss the agreement. The Union also raised concerns about the fairness of certain provisions of the agreement, including those relating to redundancy and the use of subcontractors.

In determining the application, the Commission considered the evidence and submissions provided by both parties. The Commission found that the agreement met the formal requirements for approval and that it provided for terms and conditions that were no less favourable than the national safety net. The Commission also considered the fairness of the provisions raised by the Union and found that, while some provisions were of concern, they did not render the agreement unfair overall. The Commission approved the agreement, subject to certain modifications to address the concerns raised by the Union.

The Fair Work Commission approved the Turin Aus Holdings Pty Ltd / CFMEU Collective Agreement 2019-2023, subject to modifications relating to the use of subcontractors and the calculation of redundancy payments. The modifications were designed to address the concerns raised by the Union and to ensure that the agreement met the requirements for approval under the Fair Work Act. The Commission's decision provides guidance on the approval process for enterprise agreements and the factors that it will consider in determining whether an agreement is fair and meets the requirements of the Act.

Construction, Forestry, Maritime, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established