Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 2281

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/2378)

PENHIRE PTY LTD / CFMEU COLLECTIVE AGREEMENT 2019-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	MELBOURNE, 26 JULY 2023

Application for approval of the Penhire Pty Ltd / CFMEU Collective Agreement 2019-2023

An application has been made for approval of a greenfields agreement known as the Penhire Pty Ltd / CFMEU Collective Agreement 2019-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a greenfields agreement. It has been made by the Construction, Forestry, Maritime, Mining and Energy Union.

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. In particular, 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(1) of the Act, will operate from 2 August 2023. The nominal expiry date of the Agreement is 31 December 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of a collective agreement between Penhire Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for the period 2019 to 2023. The application was brought under section 235 of the Fair Work Act 2009, which requires the Commission to approve a new agreement if it is satisfied that it complies with certain conditions, including that it does not facilitate or maintain an illegality or contravention of the Act. The CFMEU sought approval for the agreement on behalf of its members employed by Penhire.

The primary legal issues before the Commission were whether the proposed agreement was fair and reasonable in all its terms and whether it complied with the statutory requirements. The Commission needed to determine if the agreement contained any terms that were unlawful or that contravened the Act, and if the agreement facilitated or maintained any illegality or contravention of the Act. Additionally, the Commission had to consider whether the agreement provided for appropriate processes for the resolution of disputes and if it met the requirements for good faith bargaining.

The Commission examined the proposed agreement in detail, assessing its terms against the statutory criteria. It found that the agreement was fair and reasonable in all its terms and did not facilitate or maintain any illegality or contravention of the Act. The Commission was satisfied that the agreement provided for appropriate processes for the resolution of disputes and that the parties had engaged in good faith bargaining. Consequently, the Commission approved the collective agreement.

The Fair Work Commission approved the Penhire Pty Ltd / CFMEU Collective Agreement 2019-2023, finding that it met all the statutory requirements for approval. The Commission's decision was based on its determination that the agreement was fair and reasonable in all its terms, did not facilitate or maintain any illegality or contravention of the Act, and provided for appropriate processes for the resolution of disputes.

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