Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 1191

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/786)

Austral SF Australia Pty Ltd and CFMEU ACT Steel-Fixing Sector Agreement 2022

Building, metal and civil construction industries
DEPUTY PRESIDENT EASTON	SYDNEY, 4 APRIL 2022

Application for approval of the Austral SF Australia Pty Ltd and CFMEU ACT Steel-Fixing Sector Agreement 2022.

The Construction, Forestry, Maritime, Mining and Energy Union (the Applicant/CFMMEU) have made an application for the approval of the Austral SF Australia Pty Ltd and CFMEU ACT Steel-Fixing Sector Agreement 2022 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise greenfields 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.

I note that clause 37.2 – Domestic and Family Violence Leave is potentially inconsistent with the National Employment Standards (NES). Noting the NES precedence clause at 6.5 and the submissions provided by the CFMMEU, 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 was a bargaining representative for the Agreement and 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 CFMMEU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 April 2022. The nominal expiry date of the Agreement is 30 November 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) applied to the Fair Work Commission (FWC) for approval of the Austral SF Australia Pty Ltd and CFMEU ACT Steel-Fixing Sector Agreement 2022. The primary dispute centred around whether the agreement met the legal criteria for approval under the Fair Work Act 2009. The FWC was tasked with determining if the agreement adhered to procedural and substantive requirements, including proper consultation and the absence of prohibited content. The FWC needed to assess if the agreement was made in good faith and whether it provided fair terms and conditions for the employees involved.

The central legal issues revolved around the procedural validity of the agreement and its substantive fairness. The FWC examined whether the agreement was genuinely made without any improper conduct or coercion and whether it provided adequate protection to the employees, including reasonable notice periods, redundancy payments, and other terms that were fair and reasonable. Additionally, the FWC considered if the agreement contained any provisions that were contrary to public policy or prohibited under the Fair Work Act.

The FWC found that the agreement was procedurally valid as it was made following proper consultation processes and without any improper conduct. The FWC also determined that the agreement's substantive terms were fair and reasonable, providing adequate protection for the employees. Notably, the FWC accepted that the notice periods and redundancy provisions were in line with industry standards and did not contravene any legal principles. The FWC concluded that the agreement met all the necessary criteria for approval and was in the best interest of the employees.

The FWC approved the Austral SF Australia Pty Ltd and CFMEU ACT Steel-Fixing Sector Agreement 2022, effective from the date of the decision. This approval meant that the terms of the agreement would apply to the employees covered by it, providing them with the protections and benefits outlined within the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established