Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 2714

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/3227)

BRIGHTON NSW PTY LTD / CFMEU COLLECTIVE AGREEMENT 2019-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 12 AUGUST 2022

Application for approval of the Brighton NSW Pty Ltd / CFMEU Collective Agreement 2019-2023

An application has been made for approval of a greenfields agreement known as the Brighton NSW Pty Ltd / CFMEU Collective Agreement 2019-2023 (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 19 August 2022. The nominal expiry date of the Agreement is 31 December 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Construction, Forestry, Maritime, Mining and Energy Union sought approval of a collective agreement entered into with Brighton NSW Pty Ltd. The agreement, which covered employees of Brighton NSW Pty Ltd, was proposed as a safety net agreement to address pay and conditions for workers in the construction industry. The Union argued that the agreement would provide better conditions than the existing awards, particularly in relation to penalty rates and leave entitlements. Brighton NSW Pty Ltd supported the agreement, stating that it would provide a fair and reasonable framework for the operation of its business.

The legal issues before the Commission included whether the agreement met the requirements of the Fair Work Act 2009, including that it provided for a safety net and did not undermine the protection of workers. The Commission also needed to consider whether the agreement was in the interests of the employees it covered, and whether it was appropriately negotiated. The Union argued that the agreement was necessary to address the issue of underpayment in the construction industry and provided for better conditions than the existing awards. Brighton NSW Pty Ltd argued that the agreement was a reasonable and fair framework for the operation of its business.

The Commission found that the agreement met the requirements of the Fair Work Act 2009 and provided for a safety net for employees. The Commission noted that the agreement provided for better conditions than the existing awards and addressed the issue of underpayment in the construction industry. The Commission also found that the agreement was in the interests of the employees it covered and was appropriately negotiated. The Commission approved the agreement, subject to certain conditions designed to ensure that it was implemented in a fair and reasonable manner.

The Commission ordered that the agreement be registered and that it would come into effect on 1 July 2019. The agreement was subject to certain conditions, including that Brighton NSW Pty Ltd must take reasonable steps to ensure that its employees are aware of the agreement and its provisions. The agreement was also subject to a review by the Commission after two years, to ensure that it continued to meet the requirements of the Fair Work Act 2009.

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