Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 2158

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/2221)

OPERATORS AND RIGGERS PTY LTD / CFMEU SOUTH AUSTRALIA ENTERPRISE AGREEMENT 2023

Building, metal and civil construction industries
COMMISSIONER PLATT	ADELAIDE, 13 JULY 2023

Application for approval of the Operators and Riggers Pty Ltd / CFMEU South Australia Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Operators and Riggers Pty Ltd / CFMEU South Australia Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Construction, Forestry, Maritime, Mining and Energy Union (the Applicant). The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 11 July 2023.

There is one National Employment Standards (NES) issue that requires comment:

· Annual leave: Clause 5.1 (b) provides for leave in days instead of weeks, which may be inconsistent with s87 of the Act.

Clause 1.5(c) of the Agreement acts as an effective NES precedence clause. As a result of the NES precedence clause, the above Clause will not apply to the extent that it is inconsistent with the NES.

The Construction, Forestry, Mining and Energy Union, 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) of the Act I note that the Agreement covers this organisation.

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

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 July 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent case concerning the approval of the Operators and Riggers Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union South Australia Enterprise Agreement 2023, the Fair Work Commission (FWC) was tasked with determining whether the proposed enterprise agreement met the criteria for approval under the Fair Work Act 2009. The dispute arose from the application by Operators and Riggers Pty Ltd to have the agreement recognised as a lawful and valid enterprise agreement.

The primary legal issues before the FWC involved whether the agreement complied with the procedural and substantive requirements set out in the Fair Work Act. This included assessing whether the agreement was made in good faith and whether it provided for the proper determination of terms and conditions of employment. The FWC also needed to consider if the agreement met the ‘better off overall test’ and if it contained the minimum terms and conditions required by the Fair Work Act.

In its decision, the FWC found that the agreement was made in good faith and met the procedural requirements for negotiation and approval. The FWC examined the terms and conditions of the agreement, including pay rates, working hours, and other employment-related provisions. It concluded that the agreement provided for the proper determination of terms and conditions and satisfied the better off overall test. The FWC further determined that the agreement included all the minimum terms and conditions required by the Fair Work Act. Consequently, the FWC approved the Operators and Riggers Pty Ltd and CFMEU South Australia Enterprise Agreement 2023.

The FWC ordered that the agreement be registered and have effect as a registered agreement under the Fair Work Act, effective from the date of the FWC’s decision. This registration ensures that the terms and conditions of the agreement are legally binding on the parties and that the agreement will govern the employment terms and conditions of the employees covered by the agreement.

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