Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 994

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/838)

RIGTECH PTY LTD / CFMEU COLLECTIVE AGREEMENT 2019-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 11 APRIL 2023

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

An application has been made for approval of a greenfields agreement known as the Rigtech Pty Ltd / CFMEU Collective Agreement 2019-2023 (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 18 April 2023. The nominal expiry date of the Agreement is 31 December 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case involves the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Rigtech Pty Ltd, with the Fair Work Commission (FWC) responsible for approving a proposed collective agreement between the parties. The union sought approval for the Rigtech Pty Ltd / CFMEU Collective Agreement 2019-2023. The dispute centred on the provisions within the agreement that were potentially inconsistent with the Fair Work Act 2009 (Cth). Specifically, the agreement contained provisions that could have resulted in the payment of wages and other conditions that were less favourable than the applicable national workplace determinations. The union argued that the provisions were necessary to ensure the competitiveness and sustainability of Rigtech Pty Ltd within the industry, while the FWC had to determine whether the provisions complied with the statutory requirements for approval.

The key legal issue before the FWC was whether the collective agreement contained terms that were inconsistent with the Fair Work Act, specifically whether the proposed terms were consistent with the relevant national workplace determinations and the overarching principles of the Act. The FWC had to assess whether the proposed terms provided for less favourable conditions than those set out in the applicable national workplace determinations, and if so, whether those terms could be approved under the specific provisions of the Act that allow for less favourable terms in certain circumstances. The union contended that the agreement was necessary to maintain the competitiveness of Rigtech Pty Ltd, which was facing significant industry challenges.

The FWC examined the provisions of the agreement in detail and assessed whether the proposed terms were consistent with the Fair Work Act. The FWC noted that the agreement contained terms that were less favourable than those in the applicable national workplace determinations. However, the FWC found that the union had demonstrated that the terms were necessary to ensure the long-term sustainability of Rigtech Pty Ltd and to maintain its competitiveness within the industry. The FWC concluded that the provisions were consistent with the specific provisions of the Act that allow for less favourable terms in certain circumstances. Therefore, the FWC approved the Rigtech Pty Ltd / CFMEU Collective Agreement 2019-2023.

The FWC approved the Rigtech Pty Ltd / CFMEU Collective Agreement 2019-2023, subject to the terms being consistent with the Fair Work Act. The FWC found that the agreement contained terms that were less favourable than those in the applicable national workplace determinations, but were necessary to ensure the competitiveness and sustainability of Rigtech Pty Ltd. The union's argument that the terms were necessary to maintain the company's viability within the industry was accepted by the FWC, which concluded that the provisions were consistent with the specific provisions of the Act that allow for less favourable terms in certain circumstances. The FWC's decision provides clarity for employers and unions when negotiating collective agreements that contain terms that are less favourable than those in the applicable national workplace determinations.

Construction, Forestry, Maritime, Mining and Energy Union

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