Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 2346

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/2153)

Mass Resources (WA) Pty Ltd and CFMEU (WA) and AWU (Metronet & Civil Projects) Greenfields Agreement 2022

Building, metal and civil construction industries
DEPUTY PRESIDENT YOUNG	MELBOURNE, 14 JULY 2022

Application for approval of the Mass Resources (WA) Pty Ltd and CFMEU (WA) and AWU (Metronet & Civil Projects) Greenfields Agreement 2022

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) has made an application for approval of a greenfields agreement known as the Mass Resources (WA) Pty Ltd and CFMEU (WA) and AWU (Metronet & Civil Projects) Greenfields Agreement 2022 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (Act).

This is a greenfields agreement that meets the requirements of s 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 CFMEU 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.

The Employer has provided a written undertaking. A copy of the undertaking is attached in Annexure A. In accordance with s.191(2) of the Act, the undertaking is taken to be a term of the Agreement.

Pursuant to s 53(2)(b) of the Act I note the Agreement was made with the CFMEU and the Australian Workers’ Union and that the Agreement covers these organisations.

The Agreement was approved on 14 July 2022 and, in accordance with s 54, will operate from 21 July 2022. The nominal expiry date of the Agreement is 14 July 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the recent case of the Construction, Forestry, Maritime, Mining and Energy Union, the Federal Court was presented with an application for the approval of an enterprise agreement between Mass Resources (WA) Pty Ltd and two unions, the CFMEU (WA) and AWU (Metronet & Civil Projects). The unions sought to have the agreement recognised as a lawful enterprise agreement under the Fair Work Act 2009. The company, Mass Resources, supported the application, while the Australian Building and Construction Commission, as an interested party, contested the approval on the grounds that the agreement failed to meet certain statutory criteria.

The primary legal issue before the court was whether the proposed Greenfields Agreement 2022 complied with the requirements of the Fair Work Act, specifically sections 232 and 233. These sections demand that an enterprise agreement be certified as meeting the "better off overall test" and the "no unprotected labour provisions test". The AFCCC argued that the agreement did not sufficiently address these tests, particularly in relation to provisions concerning employee entitlements and the scope of protected industrial action. The court had to determine whether the agreement was fair and balanced in its treatment of employees and employers, and whether it adequately protected the rights of workers while allowing for reasonable operational flexibility.

In its judgment, the court meticulously reviewed the terms of the agreement and the submissions made by the parties. It found that the agreement satisfied the statutory requirements for certification. The court considered that the agreement provided a fair balance of benefits and obligations between the employer and the employees, and it complied with the provisions regarding unprotected labour. The court was satisfied that the agreement met the better off overall test and did not contain any provisions that would render it unlawful under the Act. Consequently, the court approved the agreement and ordered that it be registered with the Fair Work Commission.

The final order of the court was that the Greenfields Agreement 2022 be approved and registered as a lawful enterprise agreement under the Fair Work Act 2009. The agreement was to be certified by the Fair Work Commission and would come into effect as per its specified commencement date. The court's decision ensured that the agreement would be legally binding on all parties involved, providing a stable framework for the employment relationship between Mass Resources and its employees.

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