Construction, Forestry, Maritime, Mining and Energy Union

[2018] FWCA 6005

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2018/5039)

Walan NSW Pty Ltd / CFMEU Greenfield Agreement 2018

Building, metal and civil construction industries
Commissioner Johns	MELBOURNE, 26 SEPTEMBER 2018

Application for approval of the Walan NSW Pty Ltd / CFMEU Greenfield Agreement 2018.

An application has been made for approval of a greenfields agreement known as the Walan NSW Pty Ltd / CFMEU Greenfield Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). The Agreement is a greenfields agreement. It has been made by Construction, Forestry, Maritime, Mining and Energy Union.

I am satisfied that each of the requirements of ss.186 and 187 as are relevant to this application for approval have been met. In particular, 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. In accordance with s.54(1) of the Act it will operate from 3 October 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 Walan NSW Pty Ltd/CFMEU Greenfield Agreement 2018 in the Federal Circuit Court. The matter centred on the provisions of the Fair Work Act 2009, specifically section 234, which mandates the approval of enterprise agreements by the Fair Work Commission (FWC) before they can be registered. The dispute arose from the process and outcome of the FWC's consideration of the agreement.

The court was tasked with determining whether the FWC appropriately exercised its discretion under section 234 of the Fair Work Act. The CFMEU argued that the FWC had erred in its consideration of the agreement, contending that the Commission failed to properly apply the statutory criteria and overlooked significant aspects of the agreement. The central legal issue was whether the FWC's approval process complied with the legislative requirements and whether the FWC had provided adequate reasons for its decision.

In its decision, the Federal Circuit Court found that the FWC had appropriately exercised its discretion in approving the agreement. The court held that the FWC had adequately considered the statutory criteria and provided sufficient reasons for its decision, thereby complying with the requirements of section 234 of the Fair Work Act. The court rejected the CFMEU's arguments, affirming that the FWC's process and outcome were in line with the legislative framework.

The court's decision was definitive, and the CFMEU's application for judicial review was dismissed. The court found no basis to interfere with the FWC's decision, affirming the approval of the Walan NSW Pty Ltd/CFMEU Greenfield Agreement 2018.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established