Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 1181

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/845)

Cava Scaffold Solutions Pty Ltd and CFMEU Minor Civil Construction Union Collective Agreement 2021 - 2025

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 4 APRIL 2022

Application for approval of the Cava Scaffold Solutions 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 Cava Scaffold Solutions 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 11 April 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 Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) applied for approval of the Cava Scaffold Solutions Pty Ltd and CFMEU Minor Civil Construction Union Collective Agreement 2021-2025. The application was made under the Fair Work Act 2009, which requires that certain conditions be met for a collective agreement to be approved. These conditions include that the agreement must be in writing, that it must not have been made under duress, and that it must not include provisions that are contrary to public policy.

The primary legal issue the court had to decide was whether the agreement met the statutory requirements for approval. The CFMEU argued that the agreement was valid and should be approved. The applicant argued that certain provisions of the agreement were contrary to public policy and should not be approved. The court had to consider whether the provisions in question were indeed contrary to public policy, and if so, whether they were so significant as to render the entire agreement invalid.

The court examined the provisions of the agreement and found that, while some of the provisions were indeed contrary to public policy, they were not so significant as to invalidate the entire agreement. The court approved the agreement, subject to the removal of the provisions that were contrary to public policy. The court found that the overall benefits of the agreement to the employees outweighed the negative aspects, and that the agreement should be approved with the offending provisions removed.

The final orders of the court were that the agreement be approved, subject to the removal of certain provisions that were contrary to public policy. The court directed that the agreement be returned to the parties for amendment, and that, once the amendments had been made, the agreement be resubmitted for approval. The court also directed that the parties notify the Fair Work Commission of the approval of the amended agreement.

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