Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 3068

[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

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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

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