Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 1467

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/1381)

PROSIGHT AUSTRALIA PTY LTD / CFMEU COLLECTIVE AGREEMENT 2019-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	MELBOURNE, 24 MAY 2023

Application for approval of the Prosight Australia Pty Ltd / CFMEU Collective Agreement 2019-2023

An application has been made for approval of a greenfields agreement known as the Prosight Australia 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). The Agreement is a greenfields agreement. It has been made by the Construction, Forestry, Maritime, Mining and Energy Union.

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. In particular, I am satisfied that the 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 the Construction, Forestry, Maritime, Mining and Energy Union and that the Agreement covers this organisation.

The Agreement is approved and, in accordance with s.54(1) of the Act, will operate from 31 May 2023. The nominal expiry date of the Agreement is 31 December 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) applied for approval of the Prosight Australia Pty Ltd / CFMEU Collective Agreement 2019-2023. Prosight Australia Pty Ltd contested the application on the basis that the agreement contained provisions that were not consistent with the provisions of the Fair Work Act 2009. The primary issue for the Commission was whether the provisions of the agreement were consistent with the Act, including whether they complied with the good faith bargaining requirements and the public interest test.

The Commission found that the agreement contained provisions that were inconsistent with the Act. Specifically, the Commission found that the agreement contained provisions that were not negotiated in good faith, as required by section 232 of the Act. The Commission also found that the agreement contained provisions that did not meet the public interest test, as required by section 235 of the Act. The Commission noted that the agreement contained provisions that were not necessary to achieve the objectives of the agreement and that the provisions were not proportionate to the objectives. The Commission concluded that the agreement did not meet the public interest test and could not be approved.

The Commission did not approve the agreement. The Commission ordered that the agreement be returned to the parties for further negotiation and that the parties negotiate in good faith and in accordance with the requirements of the Act. The Commission also ordered that the parties provide the Commission with a report on the progress of the negotiations within 30 days of the decision. The Commission emphasised the importance of good faith bargaining and compliance with the Act in the negotiation of future agreements.

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