Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 2599

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/2655)

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

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

Application for approval of the Kenny Constructions (Aust) Pty. Limited / CFMEU Collective Agreement 2019-2023

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 (CFMEU) and Kenny Constructions (Aust) Pty. Limited were parties to an application for approval of their collective agreement 2019-2023. The application was heard by the Fair Work Commission, which must approve such agreements before they can take effect. The CFMEU sought to enforce certain provisions in the agreement that Kenny Constructions contested, leading to the dispute. The Commission was tasked with determining whether the provisions were compliant with the Fair Work Act 2009 and whether they should be approved.

The legal issues before the Commission included whether the provisions in the agreement were consistent with the Fair Work Act and whether they complied with the principles of good faith bargaining and the need to avoid unnecessary detriment to employers. The CFMEU argued that the provisions were necessary to ensure fair working conditions and protect workers' rights. Kenny Constructions, on the other hand, contended that the provisions were overly restrictive and would cause undue hardship in the operation of their business. The Commission had to weigh these arguments and decide whether the provisions should be approved.

The Commission considered the nature of the bargaining process and the content of the provisions in question. It examined whether the bargaining was conducted in good faith and whether the provisions were reasonably necessary to achieve the objectives of the agreement. The Commission found that while the CFMEU had acted in good faith, some of the provisions in the agreement were overly restrictive and would cause undue hardship to Kenny Constructions. Consequently, the Commission decided to modify certain provisions to ensure they were fair and reasonable, and approved the agreement with these modifications.

The final orders included the approval of the collective agreement with modifications to certain provisions to ensure they were fair and reasonable, and to avoid causing undue hardship to Kenny Constructions. The Commission also noted the importance of maintaining a balance between the rights of employees and the operational needs of employers in collective agreements.

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