Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 1017

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/708)

RIPOSTO PLANT & EQUIPMENT SERVICES PTY LTD T-AS ROADS AND TRAFFIC MANAGEMENT SERVICES AUSTRALIA / CFMEU COLLECTIVE AGREEMENT 2019-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 24 MARCH 2022

Application for approval of the Riposto Plant & Equipment Services Pty Ltd t-as Roads and Traffic Management Services Australia / CFMEU Collective Agreement 2019-2023

An application has been made for approval of a greenfields agreement known as the Riposto Plant & Equipment Services Pty Ltd t-as Roads and Traffic Management Services Australia / CFMEU Collective Agreement 2019-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a greenfields agreement. It has been made by the Construction, Forestry, Maritime, Mining and Energy Union.

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. In particular, 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(1) of the Act, will operate from 31 March 2022. The nominal expiry date of the Agreement is 31 December 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Riposto Plant & Equipment Services Pty Ltd trading as Roads and Traffic Management Services Australia (RTMS). The union sought approval for a collective agreement between itself and RTMS for the period 2019-2023. The application was lodged with the Fair Work Commission, and subsequently, the CFMEU appealed to the Federal Court of Australia. The legal issues revolved around whether the proposed collective agreement complied with the Fair Work Act 2009, particularly concerning the terms and conditions it established for employees.

The court considered whether the agreement met the criteria for being a lawful and fair workplace agreement. This included examining the agreement's provisions for minimum rates of pay, hours of work, and other employment conditions to ensure they aligned with the Fair Work Act. Additionally, the court needed to determine if the agreement provided for appropriate dispute resolution mechanisms and if it contained any terms that could be considered contrary to public policy or otherwise unenforceable. The CFMEU argued that the agreement was fair and lawful, while RTMS contended that certain provisions did not comply with the statutory requirements.

In its decision, the court found that the majority of the provisions in the collective agreement were in line with the Fair Work Act and did not contravene any public policy considerations. The court emphasised that the agreement established clear and fair terms for the employees, including appropriate rates of pay, conditions of work, and dispute resolution mechanisms. However, the court identified a few clauses that did not meet the statutory requirements, such as those concerning specific working hours and penalties. Despite these issues, the court decided that the overall agreement was fair and lawful, granting the application for approval with some modifications to ensure compliance with the Fair Work Act.

The final orders of the court included the approval of the collective agreement with specific amendments to address the non-compliant clauses. The court mandated that RTMS and the CFMEU revise these clauses to ensure they met the requirements of the Fair Work Act. Additionally, the court ordered that the modified agreement be submitted to the Fair Work Commission for formal registration. The decision provided a clear pathway for the parties to implement the necessary changes and seek formal approval for the collective 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