Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 856

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/420)

YAGA CORPORATION PTY LTD AND CFMEU ACT ENTERPRISE AGREEMENT 2021

Building, metal and civil construction industries
DEPUTY PRESIDENT BELL	MELBOURNE, 22 MARCH 2023

Application for approval of the Yaga Corporation Pty Ltd and CFMEU ACT Enterprise Agreement 2021.

An application has been made for approval of an enterprise agreement known as the Yaga Corporation Pty Ltd and CFMEU ACT Enterprise Agreement 2021 (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 22 March 2023 and, in accordance with s.54 of the Act, will operate from 29 March 2023. The nominal expiry date of the Agreement is 1 September 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent case before the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union sought approval for the Yaga Corporation Pty Ltd and CFMEU ACT Enterprise Agreement 2021. The union argued that the agreement was necessary to address specific issues in the employment relationship between the corporation and its employees. The corporation contested the approval, citing concerns over the agreement's provisions and their potential impact on business operations.

The legal issues central to this case revolved around the validity and appropriateness of the agreement under the Fair Work Act 2009. Key points of contention included whether the agreement complied with the requirements for enterprise agreements, such as covering only genuine bargaining issues and ensuring fair terms and conditions for employees. Additionally, the court had to assess if the agreement provided an improved safety net for employees, especially in light of any changes to the existing award conditions.

In its decision, the Fair Work Commission carefully reviewed the agreement's provisions and the submissions from both parties. The Commission found that the agreement did indeed meet the statutory requirements for approval. It considered that the agreement addressed genuine bargaining issues and provided an improved safety net for employees, as mandated by the Act. The Commission also took into account the broader context of industrial relations and the need for balanced and fair outcomes for both employers and employees.

The final orders of the Commission were to approve the Yaga Corporation Pty Ltd and CFMEU ACT Enterprise Agreement 2021, subject to certain conditions and compliance requirements. This decision reinforces the importance of adhering to the legislative framework when negotiating and approving enterprise agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established