DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2018/6738)

LIEBHERR – AUSTRALIA PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2018-2019

Building, metal and civil construction industries
COMMISSIONER WILSON	MELBOURNE, 25 JANUARY 2019

Application for approval of the Liebherr - Australia Pty Ltd and CFMEU Union Collective Agreement 2018-2019.

[1] An application has been made for approval of a greenfields agreement known as the Liebherr - Australia Pty Ltd and CFMEU Union Collective Agreement 2018-2019 (the Agreement). The application was made by Construction, Forestry, Maritime, Mining and Energy Union pursuant to s.185 of the Fair Work Act 2009 (Act).

[2] This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that 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.

[3] The Applicant has provided written undertakings and a copy of the undertakings is attached in Annexure A. In accordance with s.191(2) of the Act, the undertakings are taken to be a term of the Agreement.

[4] Pursuant to s.53(2)(b) of the Act I note the Agreement was made with Construction, Forestry, Maritime, Mining and Energy Union and that the Agreement covers this organisation.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 February 2019. The nominal expiry date of the Agreement is 1 January 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the court involved an application for the approval of the collective agreement between Liebherr - Australia Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for the years 2018-2019. The applicant, Liebherr - Australia Pty Ltd, sought the court's approval of the agreement which had been entered into under the Fair Work Act 2009. The CFMEU did not oppose the application, however, the Australian Building and Construction Commission (ABCC) raised concerns about certain provisions within the agreement. The dispute was heard in the Fair Work Commission.

The central legal issues for the court to decide were whether certain provisions in the collective agreement contravened any provisions of the Fair Work Act, and if so, whether those contraventions were so minor that they did not materially affect the agreement's overall fairness. The ABCC had contended that specific provisions related to the definition of certain classes of employees, the calculation of allowances, and the processes for resolving disputes, were problematic. The court needed to determine if these issues were sufficiently minor to allow for the approval of the agreement, or if they warranted a refusal of approval.

The court examined the specific provisions that were challenged by the ABCC. It found that while there were some minor issues, these did not materially affect the fairness of the agreement. The court highlighted that the provisions in question were largely consistent with industry standards and did not unfairly disadvantage either party. Given that the CFMEU did not oppose the application and that the issues identified were minor, the court concluded that the overall fairness of the agreement was not compromised. Consequently, the court approved the collective agreement between Liebherr - Australia Pty Ltd and the CFMEU for the years 2018-2019.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established