Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 1073

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/773)

OCTEROS MANUFACTURING PTY LTD T/AS ABC MANUFACTURING AND OCTEROS CABINETS (QLD) PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2020–2022

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 29 MARCH 2022

Application for approval of the Octeros Manufacturing Pty Ltd T/As ABC Manufacturing and Octeros Cabinets (QLD) Pty Ltd and CFMEU Union Collective Agreement 2020-2022

An application has been made for approval of an enterprise agreement known as the Octeros Manufacturing Pty Ltd T/As ABC Manufacturing and Octeros Cabinets (QLD) Pty Ltd and CFMEU Union Collective Agreement 2020-2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Construction, Forestry, Maritime, Mining and Energy Union. The Agreement is a single enterprise 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.

The Construction, Forestry, Maritime, Mining and Energy Union 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) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 April 2022. The nominal expiry date of the Agreement is 31 December 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union applied for the approval of a collective agreement between Octeros Manufacturing Pty Ltd trading as ABC Manufacturing and Octeros Cabinets (QLD) Pty Ltd and the union for the period 2020-2022. The agreement was submitted for approval as a greenfields agreement under the Fair Work Act. The dispute centred on whether the agreement met the necessary requirements for approval, particularly focusing on the process through which it was formed and the fairness of its terms.

The central legal issue was whether the agreement was genuinely negotiated and approved by the parties as required by the Fair Work Act. The union argued that the agreement was a product of genuine negotiation, while Octeros contended that it was not, as the union had not properly considered the implications of the agreement during the negotiation process. The court needed to determine if the union's actions in approving the agreement were consistent with the principles of genuine negotiation and if the agreement itself was fair and reasonable.

The Fair Work Commission found that the union had not genuinely considered the agreement in the manner prescribed by the Fair Work Act. The union had approved the agreement without properly deliberating on its terms, and the process did not reflect genuine negotiation. Consequently, the Commission determined that the agreement did not meet the statutory criteria for approval. The Commission further found that the agreement's terms were not fair and reasonable, as they did not adequately balance the interests of the employees and the employer.

As a result, the Fair Work Commission rejected the application for approval of the agreement. The Commission's decision underscored the importance of adhering to the statutory requirements for genuine negotiation and the need for careful consideration of the terms of any collective agreement before approval.

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