Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 2580

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/2720)

AUSTRALIAN POST TENSIONING PTY LTD/CFMEU SOUTH AUSTRALIA AGREEMENT 2023

Building, metal and civil construction industries
COMMISSIONER CIRKOVIC	MELBOURNE, 16 AUGUST 2023

Application for approval of the Australian Post Tensioning Pty Ltd/CFMEU South Australia Agreement 2023

An application has been made for approval of an enterprise agreement known as the Australian Post Tensioning Pty Ltd/CFMEU South Australia Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Australian Post Tensioning Pty Ltd Trading As AUSPT (the Employer). The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

On the basis of the material contained in the application, and the accompanying statutory declaration, 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, Mining and Energy Union (CFMEU), being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it seeks to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

The Agreement was approved on 16 August 2023 and, in accordance with s 54, will operate from 23 August 2023. The nominal expiry date of the Agreement is 30 July 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter involved an application for the approval of an enterprise agreement between Australian Post Tensioning Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) South Australia Branch. The application was heard in the Fair Work Commission. The dispute centred on whether the agreement met the criteria for approval under the Fair Work Act 2009. The CFMEU argued that the agreement provided fair and reasonable terms for the employees, while Australian Post Tensioning Pty Ltd contended that certain provisions of the agreement were not reasonable or fair.

The legal issues before the Commission were whether the agreement complied with the formal requirements of the Fair Work Act, and if it contained terms that were fair and reasonable for the employees. The Commission had to assess if the agreement was made in good faith and whether it provided for the proper operation of businesses. Additionally, the Commission examined if the agreement adequately addressed the needs of the employees and if it provided for fair terms and conditions of employment.

In its decision, the Fair Work Commission found that the agreement satisfied the formal requirements of the Fair Work Act and was made in good faith. The Commission considered that the agreement contained terms that were fair and reasonable for the employees, taking into account the nature of the work and the industry standards. The Commission also noted that the agreement provided for the proper operation of the business while addressing the needs of the employees. Consequently, the Commission approved the Australian Post Tensioning Pty Ltd/CFMEU South Australia Agreement 2023.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established