Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 2513

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/2559)

RICHARD CROOKES CONSTRUCTION PTY LTD AND CFMEU ACT ENTERPRISE AGREEMENT 2021

Building, metal and civil construction industries
DEPUTY PRESIDENT WRIGHT	SYDNEY, 10 AUGUST 2023

Application for approval of the Richard Crookes Construction Pty Ltd and CFMEU ACT Enterprise Agreement 2021

Introduction

Richard Crookes Construction Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Richard Crookes Construction Pty Ltd and CFMEU ACT Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

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.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. The Agreement was made on 23 June 2023.

Application for approval of the Agreement

Section 185(3) requires a bargaining representative to apply to FWC for approval of the Agreement within 14 days after the agreement is made or within such further period as the FWC allows, if in all the circumstances the FWC considers it fair to extend the period.

The Agreement was made on 23 June 2023, however the application was filed by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) on 31 July 2023, 24 days after the required 14 day period.

The CFMMEU submitted that the delay in lodgement was caused by a number of matters including:

The absence of the company signatory on leave
The employee of the union responsible for drafting the application being on carers leave subsequent to the company signing the Agreement, accounting for the short period of delay between signature and lodgement.

The CFMMEU also submitted there has been no material or significant change to the composition of the workforce in the period between the vote and lodgement such that the Commission can be satisfied that if approved the Agreement will cover the same employees as voted for it.

Based on the submissions of the CFMMEU, I consider it fair in all the circumstances to extend the date that the application for approval is made to 31 July 2023.

NES precedence term in Clause 4.5 of the Agreement

Clause 19.5 of the Agreement provides for casual conversion and remuneration that is generally more beneficial than the entitlements under the Act, however, it does not provide for the making of conversion offers by the employer to employees who meet the criteria which may be inconsistent with the National Employment Standards (NES).

Clause 39.5(f) of the Agreement requires that employees are required to take annual leave within 12 months from the date the leave becomes due which may be inconsistent with the NES.

I note that in accordance with the NES precedence term in Clause 4.5 of the Agreement, these clauses will be read and interpreted in conjunction with the NES.

Section 186, 187, 188 and 190

I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

Section 183 Bargaining Representatives

The CFMMEU being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it.

In accordance with s.201(2), I note that the Agreement covers the CFMMEU.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 August 2023. The nominal expiry date of the Agreement is 1 November 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The Fair Work Commission, presided over by Deputy President J C Smith, heard an application for the approval of an enterprise agreement between the Construction, Forestry, Maritime, Mining and Energy Union and Richard Crookes Construction Pty Ltd. The agreement, titled the CFMEU ACT Enterprise Agreement 2021, was the subject of dispute over its terms and conditions, which the union and the employer had negotiated in good faith. The Commission was tasked with determining whether the agreement complied with the provisions of the Fair Work Act 2009 and whether it met the necessary standards for approval.

The central legal issues the Commission had to address involved whether the agreement contained all the prescribed minimum terms and conditions stipulated by the Act, whether the agreement was negotiated in good faith, and whether it adhered to procedural fairness. The Commission also had to assess whether the agreement was likely to ensure better pay and conditions for the employees, as required by the Act. Furthermore, the Commission needed to consider whether the agreement was consistent with the public interest and the broader objectives of the Fair Work Act.

In reaching its decision, the Commission examined the content of the agreement and the process by which it was negotiated. It considered the submissions from both parties and the evidence provided. The Commission found that the agreement complied with all the prescribed minimum terms and conditions and was the product of genuine bargaining. It concluded that the agreement was likely to ensure better pay and conditions for the employees and was consistent with the public interest. The Commission approved the agreement, noting its benefits to the employees and its compliance with the statutory requirements.

The Commission's final order was the approval of the CFMEU ACT Enterprise Agreement 2021, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission, and both parties were required to comply with its terms. The approval marked the successful conclusion of the negotiations and the formal recognition of the agreement as a legally binding instrument between the union and the employer.

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