Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 3258

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/3698)

SYNERGY ACCESS SOLUTIONS PTY LTD AS TRUSTEE FOR SYNERGY ACCESS UNIT TRUST T/AS SYNERGY ACCESS SOLUTIONS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS RIGGER/STEEL ERECTOR ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 19 SEPTEMBER 2022

Application for approval of the SYNERGY ACCESS SOLUTIONS PTY LTD AS TRUSTEE FOR SYNERGY ACCESS UNIT TRUST T/As SYNERGY ACCESS SOLUTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the SYNERGY ACCESS SOLUTIONS PTY LTD AS TRUSTEE FOR SYNERGY ACCESS UNIT TRUST T/As SYNERGY ACCESS SOLUTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector Enterprise Agreement 2020-2023 (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.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

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 26 September 2022. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant Synergy Access Solutions Pty Ltd, as trustee for the Synergy Access Unit Trust, sought approval of the Subcontractors Rigger/Steel Erector Enterprise Agreement 2020-2023 with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The matter was heard in the Fair Work Commission. The dispute centred on whether the proposed enterprise agreement was in accordance with the requirements of the Fair Work Act 2009 and if it adhered to the principles of good faith bargaining and procedural fairness.

The central legal issues were whether the agreement was genuinely negotiated between the parties and whether it complied with the statutory provisions for enterprise agreements. Additionally, the court had to determine if the agreement met the criteria for being a single, indivisible agreement as required by the legislation. The applicant argued that the agreement was a product of good faith negotiations and met all legal requirements, while the CFMEU contended that the agreement was not genuinely negotiated and did not comply with the statutory provisions.

The Fair Work Commission found that the applicant had failed to meet its burden of demonstrating that the agreement was genuinely negotiated in good faith and that it complied with the Fair Work Act. The Commission noted that the applicant had not provided adequate evidence of the bargaining process, and there were significant procedural irregularities. Consequently, the application for approval of the enterprise agreement was dismissed. The Commission emphasised the importance of adhering to the principles of good faith bargaining and procedural fairness in the negotiation and approval of enterprise agreements.

The Fair Work Commission dismissed the application for approval of the enterprise agreement and made no orders in relation to the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established