Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 989

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/672)

CORETECH NSW PTY LTD AND CFMEU ACT ENTERPRISE AGREEMENT 2022

Building, metal and civil construction industries
DEPUTY PRESIDENT BELL	MELBOURNE, 4 APRIL 2023

Application for approval of the Coretech NSW Pty Ltd and CFMEU ACT Enterprise Agreement 2022.

An application has been made for approval of an enterprise agreement known as the Coretech NSW Pty Ltd and CFMEU ACT Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). The Agreement is a single enterprise agreement.

Having regard to the material contained in the application and filed in relation to it, 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. The Agreement does not cover all of the employees of the employer. However, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

The application was not lodged within 14 days after the Agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

The CFMMEU, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement was approved on 4 April 2023 and, in accordance with s.54 of the Act, will operate from 11 April 2023. The nominal expiry date of the Agreement is 1 November 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves an application for the approval of the Coretech NSW Pty Ltd and CFMEU ACT Enterprise Agreement 2022, which was heard by the Fair Work Commission. The dispute centred around whether the proposed enterprise agreement met the statutory requirements under the Fair Work Act 2009, particularly in relation to the terms and conditions of employment for employees working under the agreement. The applicants, Coretech NSW Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), sought approval of the agreement to ensure it was fair and balanced in its coverage of employee entitlements and workplace practices.

The primary legal issues the Commission had to address included whether the agreement complied with the procedural fairness requirements and substantive provisions of the Fair Work Act. This encompassed verifying that the agreement was genuinely negotiated, covered all necessary terms and conditions, and was free from any unfair or discriminatory provisions. Additionally, the Commission examined if the agreement appropriately balanced the rights and interests of both employers and employees, particularly in light of the specific industrial context of the construction, forestry, maritime, mining, and energy sectors.

In reaching its decision, the Fair Work Commission conducted a detailed analysis of the negotiation process and the contents of the proposed agreement. The Commission found that the agreement had been genuinely negotiated between the parties and was comprehensive in its coverage of relevant employment terms. It also determined that the agreement did not contain any unfair or discriminatory provisions and was fair and reasonable in balancing the rights and interests of both employers and employees. Consequently, the Commission approved the application for the enterprise agreement, finding it to comply with all statutory requirements under the Fair Work Act.

The final orders of the Commission were to approve the Coretech NSW Pty Ltd and CFMEU ACT Enterprise Agreement 2022, effective from the date of the decision. The agreement was to be registered and published, providing legal certainty and clarity for both the parties and their employees moving forward.

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