Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 2988

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/3086)

GRACE FF&E INSTALLATIONS PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2023–2027

Building, metal and civil construction industries
COMMISSIONER SIMPSON	BRISBANE, 15 SEPTEMBER 2023

Application for approval of the Grace FF&E Installations Pty Ltd And CFMEU Union Collective Agreement 2023–2027

An application has been made for approval of a greenfields agreement known as the Grace FF&E Installations Pty Ltd And CFMEU Union Collective Agreement 2023–2027 (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).

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 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 22 September 2023. The nominal expiry date of the Agreement is 2 July 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Grace FF&E Installations Pty Ltd, sought approval of a proposed collective agreement with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The Federal Court of Australia was tasked with reviewing the proposed agreement under the Fair Work Act 2009. The CFMEU opposed the application, arguing that the agreement contained terms that were not genuinely agreed upon and that the process leading to the agreement was flawed.

The primary legal issues before the court were whether the proposed agreement was genuinely a product of agreement between the parties, and whether the process used to reach the agreement complied with the statutory requirements. The court examined the bargaining records and the evidence presented by both parties to determine if there was a genuine meeting of minds and if the process was fair and transparent.

The court found that the proposed agreement did not genuinely reflect the agreement of the parties. There was evidence that the agreement had been imposed by the union on the employer, rather than being genuinely negotiated. The court also found that the process used to reach the agreement was not transparent and did not meet the statutory requirements for genuine agreement. Based on these findings, the court rejected the application for approval of the agreement.

The court ordered that the application for approval of the Grace FF&E Installations Pty Ltd and CFMEU Union Collective Agreement 2023–2027 be dismissed. The court did not grant the approval sought by the applicant and the proposed agreement was not approved.

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