Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 1468

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/1382)

APEX NSW PTY LTD / CFMEU COLLECTIVE AGREEMENT 2019-2023

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

Application for approval of the Apex NSW Pty Ltd / CFMEU Collective Agreement 2019-2023

An application has been made for approval of a greenfields agreement known as the Apex NSW 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

The matter before the Fair Work Commission involved an application by Apex NSW Pty Ltd for the approval of a collective agreement with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The proposed agreement, titled the Apex NSW Pty Ltd / CFMEU Collective Agreement 2019-2023, was a subject of dispute over its compliance with the Fair Work Act 2009. The Commission was required to determine whether the terms of the agreement met the necessary criteria for approval under the Act.

The primary legal issue before the Commission was whether the collective agreement contained terms that were contrary to the provisions of the Fair Work Act, particularly whether the agreement facilitated or promoted industrial action that was not authorised by the Act. The Commission had to assess the terms of the agreement to ensure they were not promoting activities that could be considered unprotected industrial action, such as secondary boycotts or unreasonable industrial action.

The Fair Work Commission found that the proposed agreement contained provisions that could be interpreted as facilitating unprotected industrial action, which was not permissible under the Fair Work Act. The Commission noted that the agreement included terms that could potentially be used to encourage or support industrial action not authorised by the Act, such as provisions related to secondary boycotts. Consequently, the Commission rejected the application for approval of the agreement, highlighting that the terms contravened the statutory requirements for industrial agreements. The Commission concluded that the agreement did not meet the necessary criteria for approval and was not in the best interests of the employees or the employer.

The Fair Work Commission's decision was that the application for approval of the Apex NSW Pty Ltd / CFMEU Collective Agreement 2019-2023 was dismissed. The Commission found that the agreement contained provisions that were not compliant with the Fair Work Act, specifically by potentially facilitating unprotected industrial action. As a result, the agreement could not be approved, and the parties were directed to negotiate and submit a revised agreement that adhered to the statutory requirements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established