Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 2597

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/2650)

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 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 brought an application to the Fair Work Commission for approval of the Kenny Constructions (Aust) Pty. Limited/CFMEU Collective Agreement 2019-2023. The union sought to have the agreement approved as a modern award, which would allow it to be registered and enforceable as if it were an award made by the Commission. The company did not oppose the application, and the only party to raise issues was the Australian Building and Construction Commission, which objected on several grounds.

The legal issues before the Commission were whether the agreement complied with the requirements of the Fair Work Act 2009 and whether it was in the public interest to approve it. The Commission considered whether the agreement met the statutory criteria for approval, including whether it provided for a fair and efficient workplace, protected employees' rights, and promoted productivity and economic efficiency. The Commission also considered whether the agreement contained any provisions that were contrary to public policy or that would have an adverse impact on the economy or employment.

The Commission found that the agreement met the statutory criteria for approval and that it was in the public interest to approve it. The agreement provided for a fair and efficient workplace and protected employees' rights, while also promoting productivity and economic efficiency. The Commission noted that the agreement contained provisions that were designed to address specific issues in the construction industry, such as the use of labour hire arrangements and the need for adequate training and supervision of workers. The Commission was satisfied that these provisions were necessary and appropriate, and that they would not have an adverse impact on the economy or employment.

The Commission approved the Kenny Constructions (Aust) Pty. Limited/CFMEU Collective Agreement 2019-2023 as a modern award. The agreement will now be registered and enforceable as if it were an award made by the Commission. The company and the union are bound by the terms of the agreement, and employees covered by the agreement are entitled to the protections and benefits it provides.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established