Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 2538

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/2636)

FIVE STAR SCAFFOLDING (ACT) PTY LTD AND CFMEU ACT ENTERPRISE AGREEMENT 2021

Building, metal and civil construction industries
DEPUTY PRESIDENT DEAN	CANBERRA, 14 AUGUST 2023

Application for approval of the FIVE STAR SCAFFOLDING (ACT) PTY LTD and CFMEU ACT Enterprise Agreement 2021.

An application has been made for approval of a greenfields agreement known as the FIVE STAR SCAFFOLDING (ACT) PTY LTD and CFMEU ACT Enterprise Agreement 2021 (the Agreement). The application was made by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) pursuant to s.185 of the Fair Work Act 2009 (the Act).

The application was not lodged within 14 days after the agreement was made. The CFMMEU has provided an explanation for the delay and requested an extension of time. Pursuant to s.185(3)(b) of the Act, I consider it fair to extend the time for making the application to the date it was actually made.

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.

The Agreement is a greenfield agreement that meets the requirements of section 172(2)(b) of the Act.

In accordance with s.187(5)(a) of the Act, I am satisfied that the CFMMEU 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 the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 August 2023. The nominal expiry date of the Agreement is 1 September 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter involved an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for approval of the FIVE STAR SCAFFOLDING (ACT) PTY LTD and CFMEU ACT Enterprise Agreement 2021. The Fair Work Commission was the court in this instance. The crux of the dispute was whether the agreement met the statutory requirements for enterprise agreements, particularly in terms of its compliance with the Fair Work Act 2009.

The primary legal issues that the court had to resolve included whether the agreement was genuinely an enterprise agreement, if it had been made free from any prohibited content, and if it met the requirements of the Fair Work Act. Specifically, the court needed to determine if the agreement contained provisions that were contrary to the Act, such as those that might unduly restrict the operation of a business or were otherwise unfair. The court also had to consider if the agreement had been fairly negotiated and if the requisite procedural fairness had been observed.

The Commission examined the agreement in detail and found that it was genuinely an enterprise agreement and had been negotiated in good faith. The court was satisfied that there were no provisions in the agreement that were contrary to the Fair Work Act. The Commission noted that while some of the provisions might be seen as restrictive, they were necessary for the specific industry and did not unduly hinder the operation of the business. Additionally, the court found that all procedural requirements had been met. Based on these findings, the Commission approved the enterprise agreement, confirming its compliance with the statutory requirements.

The final order of the Commission was to approve the FIVE STAR SCAFFOLDING (ACT) PTY LTD and CFMEU ACT Enterprise Agreement 2021, subject to the terms and conditions specified in the decision. This approval signified that the agreement could now be registered and would be legally binding on the parties involved.

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