Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 1609

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/1545)

ASP RESOURCES PTY LTD / CFMEU COLLECTIVE AGREEMENT 2019-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 5 JUNE 2023

Application for approval of the ASP Resources Pty Ltd / CFMEU Collective Agreement 2019-2023

An application has been made for approval of an enterprise agreement known as the ASP Resources Pty Ltd / CFMEU Collective Agreement 2019-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Construction, Forestry, Maritime, Mining and Energy Union. The Agreement is a single enterprise 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) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 June 2023. The nominal expiry date of the Agreement is 31 December 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of a proposed collective agreement between ASP Resources Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for the years 2019-2023. The Commission was tasked with assessing the fairness and appropriateness of the proposed agreement under the Fair Work Act 2009. The CFMEU sought approval for the agreement, while ASP Resources Pty Ltd expressed concerns regarding certain provisions, particularly those related to redundancy and dismissal.

The primary legal issue before the Commission was whether the proposed collective agreement was fair and appropriate, taking into account the criteria set out in section 235 of the Fair Work Act. The Commission had to consider whether the agreement would promote harmonious, productive, and cooperative workplace relations, and whether it provided for a fair and reasonable method of determining wages and other conditions of employment. Additionally, the Commission needed to assess whether the agreement was consistent with the Fair Work (Registered Organisations) Act 2009, and whether it provided for any unlawful terms.

In reaching its decision, the Commission considered the submissions and evidence provided by both parties. It examined the terms of the proposed agreement and assessed them against the statutory criteria. The Commission found that the majority of the terms in the agreement were fair and appropriate, promoting cooperative workplace relations and providing for a fair and reasonable method of determining wages and other conditions of employment. However, the Commission identified certain provisions related to redundancy and dismissal that it deemed to be unfair. After considering the parties' submissions and making appropriate modifications, the Commission approved the agreement with certain amendments, ensuring it complied with the statutory requirements.

The Fair Work Commission approved the ASP Resources Pty Ltd / CFMEU Collective Agreement 2019-2023, subject to the amendments made to the provisions concerning redundancy and dismissal. The approved agreement now meets the statutory criteria for fairness and appropriateness, and will govern the employment conditions of the employees covered by the agreement for the specified period.

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