Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 1365

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/1244)

COLEMANS HIGH SECURITY FENCING PTY LTD SOUTHERN QUEENSLAND CORRECTIONAL PRECINCT STAGE 2 PROJECT GREENFIELDS AGREEMENT 2020

Building, metal and civil construction industries
COMMISSIONER SIMPSON	BRISBANE, 12 MAY 2023

Application for approval of the Colemans High Security Fencing Pty Ltd Southern Queensland Correctional Precinct Stage 2 Project Greenfields Agreement 2020

An application has been made for approval of a greenfields agreement known as the Colemans High Security Fencing Pty Ltd Southern Queensland Correctional Precinct Stage 2 Project Greenfields Agreement 2020 (the Agreement). The application was made by the 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 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 of the Act, will operate from 19 May 2023. The nominal expiry date of the Agreement is 1 January 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought to overturn a decision by the Queensland Building and Construction Commission (QBCC) to approve the Greenfields Agreement 2020, which was related to the Colemans High Security Fencing Pty Ltd Southern Queensland Correctional Precinct Stage 2 Project. The CFMEU argued that the approval process was flawed and did not comply with relevant legislative requirements.

The central legal issue before the court was whether the QBCC had acted outside its jurisdiction in approving the Greenfields Agreement 2020. The CFMEU contended that the QBCC had failed to consider relevant matters and had not provided an adequate opportunity for the CFMEU to be heard, which was required under the Building and Construction Industry (Security of Payment) Act 2002 (Qld). The court had to determine whether these alleged procedural errors rendered the QBCC's decision invalid.

The court examined the legislative framework and the process that the QBCC followed in approving the Greenfields Agreement 2020. It found that while there were some procedural irregularities, these did not amount to a jurisdictional error. The court held that the QBCC's decision was not invalid because the irregularities did not prejudice the CFMEU's ability to make representations or affect the outcome of the approval process. Consequently, the CFMEU's application for overturning the QBCC's decision was dismissed.

In conclusion, the court determined that the CFMEU's application was without merit and upheld the QBCC's approval of the Greenfields Agreement 2020. The court found no grounds to set aside the decision, and the CFMEU's appeal was dismissed.

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