Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 3068

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/3582)

BMC Welding & Construction Loy Yang Station Mechanical (AMWU & CFMEU) Enterprise Agreement 2022

Building, metal and civil construction industries
COMMISSIONER O'NEILL	MELBOURNE, 5 SEPTEMBER 2022

Application for approval of the BMC Welding & Construction Loy Yang Station Mechanical (AMWU & CFMEU) Enterprise Agreement 2022

The Construction, Forestry, Maritime, Mining and Energy Union has applied for approval of an enterprise agreement known as the BMC Welding & Construction Loy Yang Station Mechanical (AMWU & CFMEU) Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

The agreement title in the Notice of Representational Rights (NERR) distributed to employees is slightly different to the agreement title in clause 1 of the Agreement. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor technical departure from the NERR requirements under s.174 of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this error. Accordingly, I exercise the discretion conferred by s.188(2) of the Act.

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.

The Construction, Forestry, Maritime, Mining and Energy Union and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

· Clause 10.5(b) - Notice of Termination; and
· Clause 10.10 - Notice of Termination.

However, noting clause 6.1 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

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 30 June 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicants in this case were the Construction, Forestry, Maritime, Mining and Energy Union and the Australian Manufacturing Workers' Union. They sought the Fair Work Commission's approval for the BMC Welding & Construction Loy Yang Station Mechanical Enterprise Agreement 2022. The dispute arose from the negotiation process of the agreement between the applicants and the employer, BMC Welding & Construction. The Fair Work Commission was tasked with determining whether the agreement met the requirements of the Fair Work Act 2009.

The legal issues before the Commission included whether the agreement was genuinely negotiated and whether it contained all the mandatory terms and conditions required by the Fair Work Act. Furthermore, the Commission had to assess whether the agreement complied with the 'better-off overall test' and if it was appropriate to make the order sought by the applicants. The Commission had to ensure that the agreement was not only fair and reasonable but also met the legislative standards set out in the Act.

The Commission found that the agreement was genuinely negotiated and contained all the mandatory terms and conditions as required by the Fair Work Act. The agreement was deemed to be in the best interest of the employees, satisfying the 'better-off overall test'. The Commission was satisfied that the agreement was fair and reasonable and met the legislative standards. Consequently, the Commission approved the BMC Welding & Construction Loy Yang Station Mechanical Enterprise Agreement 2022. The applicants' application for approval was successful, and the agreement was registered with the Fair Work Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established