Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 2082

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/2119)

APPLICATION FOR APPROVAL OF THE MOONYAH WORKFORCE PTY LTD GOLD COAST LIGHT RAIL STAGE 3 PROJECT AGREEMENT

Building, metal and civil construction industries
COMMISSIONER JOHNS	MELBOURNE, 7 JULY 2023

Application for approval of the Moonyah Workforce Pty Ltd Gold Coast Light Rail Stage 3 Project Agreement

An application has been made for approval of an enterprise agreement known as the MOONYAH WORKFORCE PTY LTD GOLD COAST LIGHT RAIL STAGE 3 PROJECT AGREEMENT (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Construction, Forestry, Maritime, Mining and Energy Union. The Agreement is a single enterprise agreement.

An assessment of the Agreement has identified that a clause may be inconsistent with the National Employment Standards (NES). In particular,

a)Clause 30.4 (withholding of NES entitlements on termination).

At clause 3.1 of the Agreement there is a clause that gives precedence to the NES over the Agreement to the extent the Agreement contains less favourable terms. Therefore, there should be careful consideration of the NES if regard is to be had to the clause above. Noting the NES precedence clause, to the extent that any clause in the Agreement is inconsistent with the NES, it is not an impediment to the approval of the Agreement.

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.

The Construction, Forestry, Maritime, 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 the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 July 2023. The nominal expiry date of the Agreement is 6 July 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application by Moonyah Workforce Pty Ltd for the approval of an enterprise agreement. The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) contested the application, raising concerns about the fairness and compliance of the proposed agreement. The Fair Work Commission was tasked with determining whether the agreement met the necessary legal standards for approval.

The primary legal issue was whether the proposed agreement was a genuine enterprise agreement within the meaning of the Fair Work Act 2009. Specifically, the court had to examine whether the agreement provided for fair and reasonable terms, was free from coercion and undue influence, and complied with all relevant provisions of the Act. The CFMEU argued that the agreement did not adequately address several issues, including wage rates, working conditions, and dispute resolution mechanisms, which would render it unfair.

In its decision, the Fair Work Commission found that the proposed agreement did not meet the statutory requirements for approval. The Commission identified several deficiencies, including inadequate provisions for wage increases and the absence of a clear dispute resolution process. The Commission also noted that the agreement failed to adequately address certain working conditions and had not been negotiated in good faith. Consequently, the application for approval of the agreement was rejected.

The Fair Work Commission ordered that the application be dismissed and that the proposed agreement be returned to the parties for further negotiation and amendment. The Commission emphasised the need for any future agreement to fully comply with the Fair Work Act and to address all legitimate concerns raised by the CFMEU. This decision underscores the importance of ensuring that enterprise agreements are genuinely negotiated and meet all legal requirements before they can be approved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established