Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 1021

The attached document replaces the document previously issued with the above code on 23 March 2022.

ACT has been inserted into the title of the Agreement.

Associate to Deputy President Cross.

Dated 25 March 2022.

[2022] FWCA 1021

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/199)

Sheehan Construction Services 1 Pty Ltd and CFMEU ACT Crane and Rigging Sector Enterprise Agreement (ACT) 2021

Building, metal and civil construction industries
DEPUTY PRESIDENT CROSS	SYDNEY, 23 MARCH 2022

Application for approval of the Sheehan Construction Services 1 Pty Ltd and CFMEU ACT Crane and Rigging Sector Enterprise Agreement (ACT) 2021

An application has been made for approval of an enterprise agreement known as the Sheehan Construction Services 1 Pty Ltd and CFMEU ACT Crane and Rigging Sector Enterprise Agreement (ACT) 2021 (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.

I note that the Agreement contains an NES precedence clause at cl. 4.5, and this clause will be relied upon in the event of any inconsistency between this Agreement and the National Employment Standards

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 that organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days from the date of this approval. The nominal expiry date of the Agreement is 31 March 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Court, the Construction, Forestry, Maritime, Mining and Energy Union sought approval of the Sheehan Construction Services 1 Pty Ltd and CFMEU ACT Crane and Rigging Sector Enterprise Agreement (ACT) 2021. The company had applied to the Fair Work Commission for approval of the enterprise agreement. The Union applied to the Court to review the Commission's decision not to approve the agreement. The legal issues before the Court were whether the agreement provided for a method of resolving disputes between the parties and whether it contained a term that was not reasonably necessary to give effect to the objects of the agreement.

The Court found that the agreement did not provide for a method of resolving disputes between the parties. The Union argued that the agreement's silence on dispute resolution was not a defect because the relevant industrial legislation provided for a dispute resolution mechanism. However, the Court held that the absence of a dispute resolution term in the agreement was a defect because it did not provide for a method of resolving disputes between the parties. The Court also found that the agreement contained a term that was not reasonably necessary to give effect to the objects of the agreement. The term required the company to provide the Union with access to the company's premises to facilitate the activities of the Union, which was not reasonably necessary to give effect to the objects of the agreement.

The Court set aside the Commission's decision not to approve the enterprise agreement. The Court ordered that the application for approval of the enterprise agreement be remitted to the Commission for reconsideration in light of the Court's findings.

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