Construction, Forestry, Maritime, Mining and Energy Union

[2018] FWCA 7781

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2018/6563)

Borger Crane Hire & Rigging Services Pty ltd / CFMEU Greenfield Agreement 2018

Building, metal and civil construction industries
Commissioner Gregory	MELBOURNE, 21 DECEMBER 2018

Application for approval of the Borger Crane Hire & Rigging Services Pty Ltd / CFMEU Greenfield Agreement 2018.

An application has been made for approval of a greenfields agreement known as the Borger Crane Hire & Rigging Services Pty Ltd / CFMEU Greenfield Agreement 2018 (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).

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.

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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 December 2018. The nominal expiry date of the Agreement is 31 December 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought approval of the Borger Crane Hire & Rigging Services Pty Ltd / CFMEU Greenfield Agreement 2018 in the Fair Work Commission (FWC). The CFMEU argued that the agreement met the requirements of the Fair Work Act 2009, while Borger Crane Hire & Rigging Services Pty Ltd did not formally contest the approval but expressed concerns about specific provisions of the agreement. The FWC was required to determine whether the agreement was a genuine enterprise agreement and met the statutory criteria under the Fair Work Act.

The FWC considered whether the agreement had been negotiated in good faith, covered the necessary employees, and was a genuine enterprise agreement. The CFMEU provided evidence of the negotiation process and the agreement's compliance with the relevant criteria. Borger Crane Hire & Rigging Services Pty Ltd did not contest the approval of the agreement but highlighted specific provisions that could potentially cause operational issues. The FWC evaluated the evidence presented by both parties and assessed the agreement's compliance with the statutory requirements.

The FWC found that the agreement was a genuine enterprise agreement and met all the statutory criteria for approval. The FWC concluded that the negotiation process was conducted in good faith and that the agreement covered all the necessary employees. The FWC also determined that the specific provisions highlighted by Borger Crane Hire & Rigging Services Pty Ltd did not prevent the agreement from being a genuine enterprise agreement. Therefore, the FWC approved the Borger Crane Hire & Rigging Services Pty Ltd / CFMEU Greenfield Agreement 2018.

The FWC approved the Borger Crane Hire & Rigging Services Pty Ltd / CFMEU Greenfield Agreement 2018, effective from 1 April 2018. The agreement was registered, and all employees of Borger Crane Hire & Rigging Services Pty Ltd became bound by its terms. Borger Crane Hire & Rigging Services Pty Ltd and the CFMEU were directed to take all necessary steps to give effect to the approved agreement. The decision provided clarity on the approval process for enterprise agreements and reinforced the importance of genuine negotiation and compliance with statutory criteria.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established