Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 2783

[2023] FWCA 2783

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/2796)

ELLIOTT’S CRANE HIRE AND CFMEU MOBILE CRANE HIRING ENTERPRISE AGREEMENT (TAS) 2023

Building, metal and civil construction industries
COMMISSIONER MIRABELLA	MELBOURNE, 1 SEPTEMBER 2023

Application for approval of the ELLIOTT’S CRANE HIRE AND CFMEU MOBILE CRANE HIRING ENTERPRISE AGREEMENT (TAS) 2023.

1. The Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU) has made an application for approval of an enterprise agreement known as the ELLIOTT’S CRANE HIRE AND CFMEU MOBILE CRANE HIRING ENTERPRISE AGREEMENT (TAS) 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the FW Act). The Agreement is a single enterprise agreement.

1. 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 FW Act that commenced operation on 6 June 2023.

1. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. Question 18 of the Form F17 provides that the notification time for the Agreement was 24 April 2023.

1. Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. Question 25.2 of the Form F17 provides that the Agreement was made on 4 August 2023.

1. On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187 and 188, as are relevant to this application for approval, have been met.

1. I observe that clause 37(g) regarding substitution of public holidays is likely to be inconsistent with the National Employment Standards (the NES). However, noting clause 9 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The CFMMEU, being a bargaining representative for the Agreement, has given notice under s.183 of the FW Act that it wants the Agreement to cover it. In accordance with s.201(2) and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

1. The Agreement was approved on 1 September 2023 and, in accordance with s.54, will operate from 8 September 2023. The nominal expiry date of the Agreement is 8 September 2026.

COMMISSIONER

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