Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 3007

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/3123)

UNITED MANAGEMENT NSW PTY LTD / CFMEU COLLECTIVE AGREEMENT 2022-2025

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

Application for approval of the United Management NSW Pty Ltd / CFMEU Collective Agreement 2022-2025

An application has been made for approval of an enterprise agreement known as the United Management NSW Pty Ltd / CFMEU Collective Agreement 2022-2025 (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.

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 notification time for the Agreement under s.173(2) was 19 July 2023 and the Agreement was made on 25 August 2023. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

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.

The Construction, Forestry, 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.

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 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) applied to the Fair Work Commission for approval of the United Management NSW Pty Ltd / CFMEU Collective Agreement 2022-2025. The applicant sought to have the agreement made a registered agreement, binding on the parties and their employees. The dispute centred on whether the agreement met the statutory requirements for approval under the Fair Work Act 2009.

The court needed to determine whether the collective agreement complied with the Act, particularly in terms of procedural fairness and substantive fairness. The CFMEU argued that the agreement was the product of genuine collective bargaining and was in the best interests of the employees. Conversely, United Management NSW Pty Ltd contended that the agreement failed to meet the criteria for approval, citing procedural irregularities and the potential for detriment to the employees.

The Commission considered the evidence presented by both parties and found that the agreement was indeed the result of genuine collective bargaining. The Commission concluded that the agreement was procedurally and substantively fair, and therefore met the statutory requirements for approval. Consequently, the application for approval was granted, and the agreement was registered as a binding document.

The final orders of the Commission were that the United Management NSW Pty Ltd / CFMEU Collective Agreement 2022-2025 be registered as a registered agreement, effective from the date of the decision. The agreement was to be binding on the parties and their employees, governing their respective rights and obligations under the terms of the collective agreement.

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