Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 2349

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/2466)

RODAUX HOLDINGS PTY LTD/ CFMEU COLLECTIVE AGREEMENT 2021-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT BELL	MELBOURNE, 31 JULY 2023

Application for approval of the Rodaux Holdings Pty Ltd/ CFMEU Collective Agreement 2021-2023.

An application has been made for approval of an enterprise agreement known as the Rodaux Holdings Pty Ltd/ CFMEU Collective Agreement 2021-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 6 June 2023 and the Agreement was made on 11 July 2023. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.[1]

Having regard to the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer. However, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

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 organisation.

While the Agreement states it shall apply from the date of lodgement, s.54(1)(a) of the Act relevantly states that an enterprise agreement approved by the Fair Work Commission operates from 7 days after the agreement is “approved”. The Agreement was approved on 31 July 2023 and, in accordance with s.54 of the Act, will operate from 7 August 2023. The nominal expiry date of the Agreement is 31 December 2023.

DEPUTY PRESIDENT

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements which are not applicable to the present application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) applied for approval of the Rodaux Holdings Pty Ltd/CFMEU Collective Agreement 2021-2023. The application was made to the Fair Work Commission (FWC) under section 235 of the Fair Work Act 2009. The dispute arose from negotiations between the CFMEU and Rodaux Holdings Pty Ltd regarding the terms and conditions of employment for workers in the construction industry. The CFMEU sought approval of the collective agreement to ensure the rights and benefits of its members were protected.

The primary legal issue before the FWC was whether the collective agreement met the criteria for approval under the Fair Work Act. This involved examining whether the agreement provided for fair and reasonable terms and conditions of employment, including minimum rates of pay, maximum ordinary hours of work, and other employment conditions. The FWC also considered whether the agreement was consistent with the Act's objectives of promoting harmonious, productive and equitable industrial relations. The CFMEU argued that the agreement was fair and reasonable, while Rodaux Holdings Pty Ltd contested certain provisions.

The FWC found that the majority of the collective agreement was fair and reasonable and met the statutory criteria for approval. The Commission noted the parties' efforts to negotiate in good faith and the agreement's alignment with the broader objectives of the Fair Work Act. However, the FWC identified certain provisions that did not meet the statutory requirements, particularly those related to shift differentials and penalty rates. The FWC amended these provisions to ensure they complied with the Act. Following these amendments, the FWC approved the collective agreement, recognising it as a fair and reasonable document that provided for the terms and conditions of employment.

The FWC's final order was that the Rodaux Holdings Pty Ltd/CFMEU Collective Agreement 2021-2023, as amended, was approved under section 235 of the Fair Work Act. This decision provided certainty for the parties and ensured the agreement's provisions were consistent with the statutory requirements for industrial relations in Australia.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established