Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 2942

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/3052)

ALIMAK GROUP AUSTRALIA PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2023–2027

Building, metal and civil construction industries
COMMISSIONER SIMPSON	BRISBANE, 13 SEPTEMBER 2023

Application for approval of the Alimak Group Australia Pty Ltd and CFMEU Union Collective Agreement 2023-2027

An application has been made for approval of an enterprise agreement known as the Alimak Group Australia Pty Ltd and CFMEU Union Collective Agreement 2023-2027 (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.

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, 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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 September 2023. The nominal expiry date of the Agreement is 2 July 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission involved an application for the approval of a collective agreement between Alimak Group Australia Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for the period 2023-2027. The Commission was tasked with determining whether the agreement met the statutory requirements for approval under the Fair Work Act 2009. This included assessing whether the agreement contained only matters that could be the subject of a lawful agreement, was made in good faith, and was not otherwise contrary to public policy. The dispute centred on specific clauses within the agreement, including those relating to pay rates, working conditions, and dispute resolution mechanisms, which the employer contested on various grounds.

The primary legal issues before the Commission were whether the collective agreement was bona fide and if it contained only matters capable of being the subject of a lawful agreement. The employer argued that certain clauses within the agreement were not bona fide as they did not reflect genuine bargaining and were instead intended to impose unreasonable terms on the employer. Additionally, the employer contended that some provisions were not lawful as they exceeded the scope of permissible matters under the Fair Work Act, particularly regarding dispute resolution mechanisms and procedural fairness. The union, on the other hand, maintained that the agreement was the result of genuine negotiations and contained only lawful matters.

The Commission carefully examined the evidence and submissions from both parties, considering the principles of good faith bargaining and the statutory constraints on the content of collective agreements. It found that the overall agreement was made in good faith and contained only lawful matters. The Commission concluded that the disputed clauses, while contentious, were not so unreasonable as to invalidate the entire agreement. It was satisfied that the union had genuinely negotiated the terms and that the employer had not demonstrated that the clauses were contrary to public policy or otherwise unlawful. Consequently, the Commission approved the collective agreement, noting the importance of maintaining a balanced and fair industrial relations framework.

The final orders of the Commission were that the Alimak Group Australia Pty Ltd and CFMEU Union Collective Agreement 2023-2027 be approved as a registered agreement under the Fair Work Act. The Commission emphasised the importance of the agreement in providing a stable and fair industrial relations environment for the parties and their employees. It directed that the agreement be registered and enforceable from the date of the decision, ensuring that the terms of the agreement would govern the employment conditions of the relevant employees during the specified period.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established