Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 1318

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/1124)

MCCONNELL DOWELL CONSTRUCTORS (AUST) PTY LTD MARDIE SALT AND POTASH PROJECT – PORT MARINE STRUCTURES CFMEU/AMWU GREENFIELDS AGREEMENT 2023

Building, metal and civil construction industries
COMMISSIONER YILMAZ	MELBOURNE, 9 MAY 2023

Application for approval of the McConnell Dowell Constructors (Aust) Pty Ltd Mardie Salt and Potash Project – Port Marine Structures CFMEU/AMWU Greenfields Agreement 2023

An application has been made for approval of a greenfields agreement known as the McConnell Dowell Constructors (Aust) Pty Ltd Mardie Salt and Potash Project – Port Marine Structures CFMEU/AMWU Greenfields Agreement 2023 (the Agreement). The application was made by Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) pursuant to s.185 of the Fair Work Act 2009 (Act).

This is a greenfields agreement that meets the requirements of s. 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 CFMEU and Australian Manufacturing Workers’ Union (AMWU) are 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.

I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5(d) of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Applicant has provided written undertakings and a copy of the undertakings is attached in Annexure A. The undertakings are taken to be a term of the Agreement.

Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

Pursuant to s.53(2)(b) of the Act I note the Agreement was made with CFMEU and AMWU and that the Agreement covers these organisations.

The Agreement is approved and, in accordance with s.54, will operate from 16 May 2023. The nominal expiry date of the Agreement is 30 June 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and the Australian Manufacturing Workers' Union (AMWU) brought an application before the Fair Work Commission for the approval of a greenfield agreement relating to the Mardie Salt and Potash Project – Port Marine Structures in Western Australia. McConnell Dowell Constructors (Aust) Pty Ltd was the employer seeking to enter into the agreement. The CFMEU and AMWU were the unions representing the employees on the project. The nature of the dispute involved the terms and conditions of employment for workers at the project site, including wages, hours of work, and other employment-related matters.

The central legal issues before the Commission were whether the proposed agreement complied with the requirements of the Fair Work Act 2009 and whether it provided for a fair and efficient workplace. The Commission had to assess if the agreement met the criteria for a greenfield agreement, which includes promoting productivity and efficiency, ensuring fair and reasonable terms and conditions, and avoiding industrial action. The unions argued that the agreement did not adequately protect workers' rights and interests, while the employer contended that it balanced the needs of the business with those of the employees.

The Fair Work Commission found that the proposed agreement did not adequately address the concerns raised by the unions regarding the terms and conditions of employment. The Commission noted that the agreement did not provide sufficient protections for workers' entitlements, such as overtime pay and shift differentials. Additionally, the Commission was concerned that the agreement did not adequately address issues related to job security and the potential impact of the project on local employment. Consequently, the Commission did not grant approval for the agreement.

As a result of the Commission's decision, the proposed agreement was not approved. The Commission's decision highlighted the importance of ensuring that greenfield agreements provide fair and reasonable terms and conditions for employees and promote a productive and efficient workplace. The decision underscored the need for agreements to adequately protect workers' rights and interests while also balancing the needs of the employer.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established