Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 2941

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/3441)

THE TRUSTEE FOR THE WITTSTADT BARRETT FAMILY TRUST T/AS GBJ INSTALLATIONS PTY LTD SOUTHERN QUEENSLAND CORRECTIONAL PRECINCT STAGE 2 PROJECT GREENFIELDS AGREEMENT 2020

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 26 AUGUST 2022

Application for approval of The Trustee for The Wittstadt Barrett Family Trust T/As GBJ Installations 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 Trustee for The Wittstadt Barrett Family Trust T/As GBJ Installations 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 2 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 parties involved in the case were The Trustee for The Wittstadt Barrett Family Trust T/As GBJ Installations Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute centred around the approval of the Greenfields Agreement 2020, which was intended to govern the Southern Queensland Correctional Precinct Stage 2 Project. The application for approval was brought before the Australian Industrial Relations Commission. The legal issues that the court needed to address included whether the agreement was genuinely negotiated between the parties, whether it complied with the requirements of the Fair Work Act 2009, and whether it would have a detrimental effect on the employees covered by the agreement.

The court began by examining the process by which the agreement was negotiated. It was found that the agreement had not been genuinely negotiated as required by the Act. The court noted that there were significant procedural deficiencies in the negotiation process, which undermined the validity of the agreement. The court also found that the agreement did not comply with certain provisions of the Act, such as the requirement for the agreement to be in writing and for it to be certified by an authorised officer of the Commission. Finally, the court considered whether the agreement would have a detrimental effect on the employees covered by it. The court found that the agreement would have a detrimental effect on the employees, as it would result in a reduction in their entitlements and conditions of employment.

Based on these findings, the court refused to approve the Greenfields Agreement 2020. The court found that the agreement was not genuinely negotiated, did not comply with the requirements of the Act, and would have a detrimental effect on the employees covered by it. As a result, the application for approval was dismissed. The court did not make any further orders in relation to the dispute.

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