Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 2598

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/2654)

KENNY CONSTRUCTIONS (AUST) PTY. LIMITED / CFMEU COLLECTIVE AGREEMENT 2019-2023

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

An application has been made for approval of a greenfields agreement known as the Kenny Constructions (Aust) Pty. Limited/CFMEU Collective Agreement 2019-2023 (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). 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 Agreement was made on 4 August 2023. Accordingly, the better off overall test requirements are those applying on and from 6 June 2023.

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 the Construction, Forestry, Maritime, 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 the Construction, Forestry, Maritime, 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 25 August 2023. The nominal expiry date of the Agreement is 31 December 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union lodged an application for approval of the Kenny Constructions (Aust) Pty. Limited/CFMEU Collective Agreement 2019-2023, a greenfields agreement, with the Fair Work Commission under section 185 of the Fair Work Act 2009. The application was made following the implementation of changes introduced by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022. The Agreement was approved and is set to operate from 25 August 2023, with a nominal expiry date of 31 December 2023.

The Deputy President was required to determine whether the application met the necessary criteria under sections 186 and 187 of the Fair Work Act. This included ensuring the agreement met the requirements of section 172(2)(b) and confirming the Construction, Forestry, Maritime, Mining and Energy Union represented a majority of the employees who would be covered by the agreement. Additionally, the Deputy President had to consider whether it was in the public interest to approve the agreement.

In making the decision, the Deputy President found that the agreement met the necessary requirements under the Fair Work Act. The Deputy President confirmed that the Construction, Forestry, Maritime, Mining and Energy Union was entitled to represent the industrial interests of a majority of employees who would be covered by the agreement. The Deputy President also found that it was in the public interest to approve the agreement.

The Deputy President approved the Kenny Constructions (Aust) Pty. Limited/CFMEU Collective Agreement 2019-2023, and it will operate from 25 August 2023 until 31 December 2023.

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