Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 703

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/312)

ABSAFE POWER INDUSTRY CFMEU ENTERPRISE AGREEMENT 2022

Building services
DEPUTY PRESIDENT DEAN	CANBERRA, 6 MARCH 2023

Application for approval of the Absafe Power Industry CFMEU Enterprise Agreement 2022.

An application has been made for approval of an enterprise agreement known as the Absafe Power Industry CFMEU Enterprise Agreement 2022 (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.

The Notice of Employee Representational Rights issued to the employees referred to the title of the Agreement as the “ABSAFE PTY LTD and CFMEU (Victoria) Enterprise Agreement 2020-2023”, rather than the title of the Agreement filed with the Commission. I am satisfied however that this constitutes a minor procedural or technical error for the purposes of s.188(2)(a). I am further satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error and that the Agreement has been genuinely agreed within the meaning of s.188(2).

Clause 4.1 of the Agreement states the Agreement will operate from the date of lodgement. This is inconsistent with s.54 of the Act which states that an enterprise agreement approved by the Commission operates from 7 days after the agreement is approved, or if a later day is specified in the agreement, that later day. Accordingly, the Agreement will operate 7 days from the date of this decision.

The Construction, Forestry, 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 13 March 2023. The nominal expiry date of the Agreement is 30 June 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and the employers in the power industry, focusing on the approval of the Absafe Power Industry CFMEU Enterprise Agreement 2022. The primary dispute centred on the conditions of employment, wages, and the overall fairness of the proposed agreement. The Commission was tasked with determining whether the agreement met the necessary legal standards for approval and if it complied with the relevant legislative requirements.

The key legal issues addressed by the Commission included whether the agreement provided for the proper determination of wages and conditions, whether it contained terms that were contrary to public policy, and if it adequately balanced the interests of both employees and employers. Additionally, the Commission examined whether the agreement had been genuinely negotiated and if it met the criteria for "better off overall" for the employees involved.

In its decision, the Commission assessed the provisions of the agreement against the legislative framework provided by the Fair Work Act 2009. The Commission found that the agreement provided for a proper determination of wages and conditions, did not contain terms that were contrary to public policy, and adequately balanced the interests of both parties. Furthermore, the Commission concluded that the agreement had been genuinely negotiated and met the "better off overall" test. Based on these findings, the Commission approved the Absafe Power Industry CFMEU Enterprise Agreement 2022.

The final orders of the Commission included the approval of the enterprise agreement, which would now be binding on the parties involved. The agreement was set to come into effect from the date of the Commission's decision, and all parties were directed to comply with its terms and conditions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established