Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 3766

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/4360)

Melchor Contracting Pty Ltd and CFMEU (WA) Public Transport Authority and Main Roads WA Projects Agreement 2022

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 27 OCTOBER 2022

Application for approval of the Melchor Contracting Pty Ltd and CFMEU (WA) Public Transport Authority and Main Roads WA Projects Agreement 2022.

An application has been made for approval of a greenfields agreement known as the Melchor Contracting Pty Ltd and CFMEU (WA) Public Transport Authority and Main Roads WA Projects Agreement 2022 (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.

I note that clause 12.7 may be inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 6.1(b) of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

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 3 November 2022. The nominal expiry date of the Agreement is 31 December 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case before the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Melchor Contracting Pty Ltd applied for approval of the Public Transport Authority and Main Roads WA Projects Agreement 2022. The agreement sought to cover workers employed in the construction of public transport infrastructure projects in Western Australia. The legal issues before the Commission centred on whether the proposed agreement met the criteria for an enterprise agreement under the Fair Work Act 2009, specifically whether the agreement was made by a genuine enterprise bargaining representative and whether it dealt with the matters within the scope of enterprise bargaining rights.

The Commission examined the evidence regarding the representation of the union as a genuine bargaining representative and the extent to which the proposed agreement dealt with relevant matters. It was established that the union had been endorsed by a majority of the relevant employees, thus satisfying the requirements for genuine representation. The Commission also found that the proposed agreement comprehensively covered the relevant terms and conditions of employment, including wages, hours of work, and other employment-related matters. The agreement was deemed to be within the scope of enterprise bargaining rights as it did not cover any prohibited content or matters outside the bargaining scope. Based on this analysis, the Commission approved the agreement, finding it met the statutory requirements.

Consequently, the Fair Work Commission approved the Public Transport Authority and Main Roads WA Projects Agreement 2022 as a certified agreement. This decision was made on the basis that the agreement was made by a genuine enterprise bargaining representative and dealt with matters within the scope of enterprise bargaining rights. The approved agreement now serves as a binding enterprise agreement between the union and the employer, regulating the terms and conditions of employment for workers in the specified projects.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established