Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 934

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/694)

INCLINE HIRE PTY LIMITED T-AS DALMA INDUSTRIES / CFMEU COLLECTIVE AGREEMENT 2019-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 30 MARCH 2023

Application for approval of the Incline Hire Pty Limited t-as Dalma Industries / CFMEU Collective Agreement 2019-2023

An application has been made for approval of an enterprise agreement known as the Incline Hire Pty Limited t-as Dalma Industries / CFMEU Collective Agreement 2019-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Construction, Forestry, Maritime, Mining and Energy Union. The Agreement is a single enterprise agreement.

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 Construction, Forestry, Maritime, Mining and Energy Union 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 is approved and, in accordance with s.54 of the Act, will operate from 6 April 2023. The nominal expiry date of the Agreement is 31 December 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application for the approval of a collective agreement between Incline Hire Pty Limited, trading as Dalma Industries, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The union sought to have the collective agreement recognised as a Registered Agreement under the Fair Work Act 2009. The nature of the dispute centred on the terms and conditions outlined in the proposed agreement, which the union argued were fair and reasonable, while the employer contested certain provisions.

The key legal issues before the Commission were whether the agreement met the criteria for approval under section 234 of the Fair Work Act. This involved examining if the agreement provided for the pay and conditions of the employees fairly and reasonably, and if it complied with the provisions of the Act, including ensuring it did not discriminate against any person or group. The Commission also had to consider if the agreement was consistent with the broader public interest and whether it adhered to the principles of freedom of association.

The Commission found that the agreement, while containing some contentious provisions, overall provided for the pay and conditions of employees fairly and reasonably. The Commission was satisfied that the agreement did not discriminate against any employee and that it was consistent with the broader public interest. The employer's arguments regarding certain provisions were addressed and resolved in a manner that maintained the integrity of the agreement. Consequently, the Commission approved the collective agreement, recognising it as a Registered Agreement under the Fair Work Act.

The final orders of the Commission included the registration of the CFMEU/Dalma Industries Collective Agreement 2019-2023 as a Registered Agreement, effective from the date of the decision. This ruling ensures that the terms and conditions set out in the agreement are legally enforceable and binding on both the employer and the employees covered by the agreement.

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