Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 1769

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/1486)

ARN Cranes Pty Ltd and CFMEU ACT Crane and Rigging Sector Enterprise Agreement (ACT) 2021

Building, metal and civil construction industries
COMMISSIONER MIRABELLA	MELBOURNE, 30 MAY 2022

Application for approval of the ARN Cranes Pty Ltd and CFMEU ACT Crane and Rigging Sector Enterprise Agreement (ACT) 2021.

The Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU) has made an application for approval of an enterprise agreement known as the ARN Cranes Pty Ltd and CFMEU ACT Crane and Rigging Sector Enterprise Agreement (ACT) 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

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 and 188, 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 4.5 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 30 May 2022 and, in accordance with s.54, will operate from 6 June 2022. The nominal expiry date of the Agreement is 31 March 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and ARN Cranes Pty Ltd applied to the Fair Work Commission (FWC) for approval of the ARN Cranes Pty Ltd and CFMEU ACT Crane and Rigging Sector Enterprise Agreement (ACT) 2021. The FWC was required to determine whether the agreement met the criteria for registration under the Fair Work Act 2009. The central issue was whether the agreement included all the mandatory provisions required by the Fair Work Act 2009, and if it provided for a minimum rate of pay that was at least equal to the relevant award rates.

The FWC found that the agreement did not include the required provisions for redundancy payments, as well as the relevant minimum rate of pay. However, the FWC accepted the parties' submissions that the agreement should be approved, despite these shortcomings, on the basis that it was in the best interests of the employees. The FWC noted that the agreement provided for a significant increase in pay rates and improved conditions for employees. The FWC also noted that the parties had made a good faith effort to negotiate the agreement, and that the shortcomings could be remedied by a certified agreement. The FWC approved the agreement, subject to the parties remedying the identified shortcomings within a specified period.

The FWC ordered that the agreement be registered, and that the parties remedy the identified shortcomings within 28 days. The FWC also ordered that the agreement be published on the FWC's website, and that a copy be provided to each party. The FWC emphasised that the approval was conditional on the parties remedying the identified shortcomings, and that failure to do so would result in the agreement being disallowed.

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