Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 951[Note: a correction has been issued to this document]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/665)

Embelton Contracting Pty Ltd / CFMEU Collective Agreement 2019-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 22 MARCH 2022

Application for approval of the Embelton Contracting Pty Ltd / CFMEU Collective Agreement 2019-2023

An application has been made for approval of a greenfields agreement known as the Embelton Contracting Pty Ltd / CFMEU Collective Agreement 2019-2023 (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 29 March 2021. The nominal expiry date of the Agreement is 31 December 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for approval of the collective agreement between Embelton Contracting Pty Ltd and the union, titled the Embelton Contracting Pty Ltd / CFMEU Collective Agreement 2019-2023. The dispute centred on whether the terms of the agreement complied with the requirements of the Fair Work Act 2009. The Commission was tasked with ensuring that the agreement adhered to the principles of good faith bargaining and was in the best interests of the employees covered by the agreement.

The central legal issues before the Commission were whether the agreement met the statutory criteria for approval, specifically whether it complied with the good faith bargaining requirement and whether it was in the best interests of the employees. The Commission had to consider the nature of the bargaining process, the terms of the agreement, and whether the agreement contained provisions that were fair and reasonable in all the circumstances. The Commission also needed to assess whether the agreement complied with the procedural fairness principles and whether the agreement contained any terms that were contrary to the public interest.

The Fair Work Commission found that the agreement was the product of genuine and meaningful bargaining, which was conducted in good faith. The Commission noted that both parties had engaged in the bargaining process with a view to reaching a fair and reasonable agreement. The Commission also determined that the terms of the agreement were fair and reasonable, taking into account the nature of the industry, the economic circumstances, and the interests of the employees. The Commission was satisfied that the agreement contained provisions that were in the best interests of the employees and did not contain any terms that were contrary to the public interest. Consequently, the Commission approved the agreement.

The Fair Work Commission approved the Embelton Contracting Pty Ltd / CFMEU Collective Agreement 2019-2023, finding that the agreement was the result of genuine and meaningful bargaining conducted in good faith, and that the terms of the agreement were fair and reasonable. The Commission determined that the agreement was in the best interests of the employees and did not contain any terms that were contrary to the public interest.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established