Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 3354

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/3785)

Borger Crane Hire & Rigging Services Pty Ltd & Borger Crane Hire & Rigging Services (BTS) Pty Ltd and CFMEU Union Collective Agreement 2022-2023

Building, metal and civil construction industries
COMMISSIONER WILSON	MELBOURNE, 28 SEPTEMBER 2022

Application for approval of the Borger Crane Hire & Rigging Services Pty Ltd & Borger Crane Hire & Rigging Services (BTS) Pty Ltd and CFMEU Union Collective Agreement 2022-2023

An application has been made for approval of an enterprise agreement known as the Borger Crane Hire & Rigging Services Pty Ltd & Borger Crane Hire & Rigging Services (BTS) Pty Ltd and CFMEU Union Collective Agreement 2022-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Construction, Forestry, Maritime, Mining and Energy Union. The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 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 5 October 2022. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application for the approval of a collective agreement between the Borger Crane Hire & Rigging Services Pty Ltd and Borger Crane Hire & Rigging Services (BTS) Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union. The applicants sought approval of the collective agreement for the period 2022-2023, which detailed terms and conditions of employment for employees within the specified companies. The legal issues at hand primarily revolved around whether the agreement complied with the relevant provisions of the Fair Work Act 2009, particularly in terms of its fairness and the process by which it was negotiated.

The Commission examined whether the collective agreement met the criteria for approval under section 234 of the Fair Work Act. This involved assessing whether the agreement provided for a fair and efficient system for determining employees' terms and conditions of employment, and whether it was negotiated in good faith. Additionally, the Commission had to determine if the agreement was in the best interests of the employees and whether it complied with the process outlined in the Fair Work Regulations. The Commission also considered submissions from both the applicants and the union regarding the terms of the agreement and the negotiation process.

In its decision, the Commission found that the collective agreement was fair and efficient, providing for a clear and accessible system for resolving employment-related issues. The Commission was satisfied that the agreement had been negotiated in good faith and that it was in the best interests of the employees. The Commission noted the detailed provisions regarding wages, conditions, and dispute resolution mechanisms, which it found to be comprehensive and balanced. The Commission approved the collective agreement, finding that it met all necessary legislative requirements and would serve the interests of both the employees and the employers.

The Commission issued an approval order under section 234 of the Fair Work Act, approving the collective agreement for the specified period. The order detailed that the agreement would come into effect on 1 July 2022 and would remain in force until 30 June 2023. The Commission emphasised that the approval was contingent upon the continued compliance with all relevant legislative requirements throughout the term of the agreement. The order also included provisions for the parties to notify the Commission of any changes or amendments to 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