Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 1995

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/1542)

AJA Industries Australia Pty Ltd t/a Jacaranda Industries and CFMEU Enterprise Agreement 2021-2023

Timber and paper products industry
COMMISSIONER MIRABELLA	MELBOURNE, 22 JUNE 2022

Application for approval of the AJA Industries Australia Pty Ltd t/a Jacaranda Industries and CFMEU Enterprise Agreement 2021-2023.

The Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU) has made an application for approval of an enterprise agreement known as the AJA Industries Australia Pty Ltd t/a Jacaranda Industries and CFMEU Enterprise Agreement 2021-2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

AJA Industries Australia Pty Ltd t/a Jacaranda Industries (the Employer) has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187, 188 and 190, as are relevant to this application for approval, have been met.

The application was not lodged within 14 days after the Agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 6.7 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The CFMMEU 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) and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

The Agreement was approved on 22 June 2022 and, in accordance with s.54, will operate from 29 June 2022. The nominal expiry date of the Agreement is 31 August 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union sought approval of the AJA Industries Australia Pty Ltd t/a Jacaranda Industries and CFMEU Enterprise Agreement 2021-2023. The dispute arose under the Fair Work Act 2009, where the union aimed to secure a fair and reasonable agreement for its members employed by the respondent company. The union argued that the agreement, which addressed various employment terms and conditions, was made in good faith and met the necessary standards for approval.

The central legal issues before the Commission involved determining whether the agreement was made in good faith and whether it satisfied the criteria for being a “better off overall” agreement as required by the Fair Work Act. This involved assessing whether the agreement provided employees with benefits that were at least as good as, or better than, the applicable award or other relevant agreement. Additionally, the Commission needed to examine whether the agreement included provisions that were fair and reasonable in all respects.

The Commission found that the agreement was made in good faith and met all the statutory requirements for approval. The union had demonstrated that the agreement provided employees with benefits that were at least as good as, or better than, those provided under the applicable award. The Commission also considered the fairness and reasonableness of the agreement's provisions, finding them to be acceptable. The evidence presented supported the conclusion that the agreement was beneficial to the employees and met all the criteria for approval under the Fair Work Act.

The Fair Work Commission approved the AJA Industries Australia Pty Ltd t/a Jacaranda Industries and CFMEU Enterprise Agreement 2021-2023. The Commission determined that the agreement was made in good faith, provided employees with benefits that were at least as good as, or better than, those provided under the applicable award, and included provisions that were fair and reasonable in all respects.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established