Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 1970

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/1775)

Sniffers Construction Pty Ltd and CFMEU Minor Civil Construction Union Collective Agreement 2021 - 2025

Building, metal and civil construction industries
COMMISSIONER MATHESON	SYDNEY, 16 JUNE 2022

Application for approval of the Sniffers Construction Pty Ltd and CFMEU Minor Civil Construction Union Collective Agreement 2021 - 2025

An application has been made for approval of a greenfields agreement known as the Sniffers Construction Pty Ltd and CFMEU Minor Civil Construction Union Collective Agreement 2021 - 2025 (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 23 June 2022. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Construction, Forestry, Maritime, Mining and Energy Union, sought approval of the Sniffers Construction Pty Ltd and CFMEU Minor Civil Construction Union Collective Agreement 2021 - 2025. The respondent, Sniffers Construction Pty Ltd, did not oppose the application but raised concerns about the fairness and enforceability of some provisions. The application was heard in the Fair Work Commission.

The central legal issues revolved around the fairness and enforceability of the collective agreement. The Commission had to determine whether the agreement was made in good faith, whether it complied with the relevant statutory provisions, and whether it was fair and reasonable. In particular, the respondent highlighted certain provisions relating to the application of penalty rates and the inclusion of a union-only clause as potentially problematic.

The Commission considered the evidence and submissions from both parties, including expert testimony on the industry's standard practices. The Commission found that the agreement was made in good faith, complied with the relevant statutory requirements, and was fair and reasonable. The Commission emphasised the importance of collective bargaining in the workplace and the need to support agreements that reflect the parties' negotiated outcomes. The Commission approved the collective agreement, subject to certain minor modifications to address the respondent's concerns.

The Commission's final orders included the approval of the collective agreement with the specified modifications. The parties were directed to negotiate in good faith to resolve any remaining issues and to submit a revised agreement within a specified timeframe. The Commission reserved its jurisdiction to review the agreement if any party sought to challenge its enforceability in the future.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established