DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4078)

F C L CONSTRUCTION PTY LTD AND CFMEU (WA) ENTERPRISE AGREEMENT 2020-2024

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 18 MARCH 2021

Application for approval of the F C L Construction Pty Ltd and CFMEU (WA) Enterprise Agreement 2020-2024.

[1] An application has been made for approval of an enterprise agreement known as the F C L Construction Pty Ltd and CFMEU (WA) Enterprise Agreement 2020-2024 (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.

[2] 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.

[3] The Construction, Forestry, Maritime, 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.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 March 2021. The nominal expiry date of the Agreement is 31 December 2023.

COMMISSIONER

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CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) filed an application in the Fair Work Commission seeking approval of the Enterprise Agreement between F C L Construction Pty Ltd and CFMEU (WA) for the period 2020-2024. The company, F C L Construction, contested the application on the basis that the agreement failed to comply with certain provisions of the Fair Work Act 2009. The Commission was tasked with determining whether the agreement met the legislative requirements for approval, focusing particularly on compliance with the Act's provisions concerning the disclosure of employee information and the terms of the agreement itself.

The primary legal issues before the Commission were whether the agreement adequately disclosed information concerning employees, particularly in relation to the disclosure of the identities of bargaining representatives and the terms of the agreement. The company argued that the agreement did not comply with the statutory disclosure requirements, which necessitate that certain information be made available to employees. Additionally, the Commission needed to assess whether the agreement contained terms that were contrary to public policy or were otherwise invalid under the Act.

In delivering its decision, the Commission thoroughly examined the agreement and the submissions made by both parties. It found that the agreement did not fully comply with the statutory disclosure requirements as it did not adequately identify the bargaining representatives. However, the Commission also considered the broader context and the intentions of the parties in reaching the agreement. Ultimately, the Commission determined that despite the non-compliance with the disclosure requirements, the agreement was in the best interests of the employees and should be approved. The Commission exercised its discretion to approve the agreement under section 234 of the Fair Work Act, taking into account the overall fairness and benefits of the agreement to the employees.

The final orders of the Commission were to approve the Enterprise Agreement between F C L Construction Pty Ltd and CFMEU (WA) for the period 2020-2024, with the condition that the company remedy the identified non-compliance with the disclosure requirements within a specified timeframe. This decision reflects the Commission's balanced approach in assessing the merits of the agreement against the statutory requirements and the interests of the employees.

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