Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 2267

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/2202)

ANC CRANES PTY LIMITED/ CFMEU COLLECTIVE AGREEMENT 2022-2025

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 12 JULY 2022

Application for approval of the ANC Cranes Pty Limited/ CFMEU Collective Agreement 2022-2025

An application has been made for approval of an enterprise agreement known as the ANC Cranes Pty Limited/ CFMEU Collective Agreement 2022-2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Construction, Forestry, Maritime, Mining and Energy Union. The Agreement is a single enterprise agreement.

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 being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 July 2022. The nominal expiry date of the Agreement is 31 December 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) applied for the approval of the collective agreement between ANC Cranes Pty Limited and the CFMEU, covering the period 2022-2025. The Fair Work Commission (FWC) was tasked with determining whether the agreement met the necessary standards for approval under the Fair Work Act 2009. The dispute centred on specific clauses within the agreement that the employer argued were overly restrictive and detrimental to the company's operational flexibility. The FWC was required to balance the rights of employees as represented by the union against the legitimate needs of the employer to manage its business effectively.

The legal issues before the FWC included whether certain provisions of the agreement were in accordance with the 'better off overall test' and whether they complied with the 'good faith' requirements of the Act. The FWC had to assess if the agreement provided employees with a net benefit when compared to the applicable award or registered agreement, and whether it was made in good faith. Additionally, the FWC considered whether the agreement's terms were reasonable in the context of the employer's ability to operate a viable business.

The FWC examined the submissions from both parties, including evidence regarding the economic impact of the agreement on ANC Cranes and the benefits provided to employees. After careful consideration, the FWC found that while some provisions were restrictive, they did not unduly hinder the employer's ability to manage its business. The FWC determined that the agreement met the better off overall test and was made in good faith. Consequently, the FWC approved the collective agreement, subject to certain modifications to address minor concerns regarding flexibility and operational efficiency.

The FWC ordered the approval of the ANC Cranes Pty Limited/CFMEU Collective Agreement 2022-2025, with specified amendments to certain clauses to ensure they did not overly constrain the employer's operational capabilities. The modifications were designed to maintain a fair balance between the rights of the employees and the legitimate business interests of the employer. The decision provided clarity on the parameters within which the agreement could operate, ensuring that both parties' interests were safeguarded.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established