Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 3070

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/3553)

MARSH HEIGHT SAFETY (AUST) PTY LTD SOUTHERN QUEENSLAND CORRECTIONAL PRECINCT STAGE 2 PROJECT GREENFIELDS AGREEMENT 2020

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 5 SEPTEMBER 2022

Application for approval of the Marsh Height Safety (Aust) Pty Ltd Southern Queensland Correctional Precinct Stage 2 Project Greenfields Agreement 2020

An application has been made for approval of a greenfields agreement known as the Marsh Height Safety (Aust) Pty Ltd Southern Queensland Correctional Precinct Stage 2 Project Greenfields Agreement 2020 (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.

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 12 September 2022. The nominal expiry date of the Agreement is 1 January 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) filed an application for the approval of the Marsh Height Safety (Aust) Pty Ltd Southern Queensland Correctional Precinct Stage 2 Project Greenfields Agreement 2020. The matter was heard by the Fair Work Commission (FWC), which was required to assess whether the agreement met the necessary requirements for approval under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the agreement provided for terms and conditions that were no less favourable than the relevant national system award or registered agreement, and whether it complied with the good faith bargaining requirements set forth in the legislation. Additionally, the FWC had to consider if the agreement included provisions that were not inconsistent with the overarching principles of the Act and whether the process through which the agreement was reached adhered to the procedural fairness standards.

The FWC determined that the agreement did indeed provide terms and conditions that were not less favourable than those stipulated in the applicable award or registered agreement. The Commission also found that the process of negotiating the agreement was conducted in good faith and was consistent with the requirements of the Act. As a result, the FWC approved the agreement, recognising that it met the statutory criteria for endorsement.

In approving the agreement, the FWC issued its decision and orders, formalising the terms of the Marsh Height Safety (Aust) Pty Ltd Southern Queensland Correctional Precinct Stage 2 Project Greenfields Agreement 2020. This decision concluded that the agreement was fit for approval and should be recognised as a valid enterprise agreement under the Fair Work Act.

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