Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 2132

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/2001)

P & D CRANES AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Mobile Crane Hiring Industry Enterprise Agreement 2020-2023

Building, metal and civil construction industries
COMMISSIONER MATHESON	SYDNEY, 30 JUNE 2022

Application for approval of the P & D CRANES AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Mobile Crane Hiring Industry Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the P & D CRANES AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Mobile Crane Hiring Industry Enterprise Agreement 2020-2023 (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 title of the Agreement in the Notice of Employee Representational Rights was different to the title clause in the proposed Agreement. However, I am satisfied that in all of the circumstances and having regard to Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[1], this constitutes a minor procedural or technical error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

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 7 July 2022. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter involved an application for the approval of the P & D CRANES AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Mobile Crane Hiring Industry Enterprise Agreement 2020-2023. The Fair Work Commission was the tribunal tasked with assessing the agreement to determine if it met the necessary standards under the Fair Work Act 2009.

The court needed to address several legal issues pertinent to the approval process of the enterprise agreement. These included whether the agreement satisfied the requirements of section 231 of the Fair Work Act, including being in writing, in plain English, and not containing any terms that were less favourable than the applicable award or the national system. The court also had to consider whether the agreement met the good faith bargaining test as per section 228 of the Act, ensuring that the agreement was made in good faith.

In its decision, the Fair Work Commission concluded that the agreement was appropriately drafted in plain English and did not include any less favourable terms than the applicable award or national system. The court found that the agreement was the product of good faith bargaining, as both parties had engaged in discussions and negotiations that led to a mutually acceptable outcome. The commission determined that the agreement was fair and reasonable and approved it as a registered agreement.

The Fair Work Commission granted the application for approval of the enterprise agreement, recognising it as a valid and binding agreement between the employer and the union. The decision emphasised the importance of good faith bargaining and the need for agreements to be fair and reasonable, reflecting the principles of the Fair Work Act.

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