Construction, Forestry, Mining and Energy Union v Brookfield Multiplex Australasia Pty Ltd

The Construction, Forestry, Mining and Energy Union brought proceedings against Brookfield Multiplex Australasia Pty Ltd in the Fair Work Commission. The union sought a protected action ballot order and a declaration that certain provisions of an enterprise agreement, including a contractors clause, were void as they contravened the Fair Work Act 2009. The legal issues before the Commission included whether the employer had genuinely tried to reach agreement, whether the clause related to the security of employment, and if the clause had any ascertainable nexus with the employment relationship. The Commission considered whether the clause was a permitted matter and whether the union had made an industry-wide claim.

The Fair Work Commission found that the employer had not genuinely tried to reach agreement and that the clause was void as it did not have any ascertainable nexus with the employment relationship. The clause was not a permitted matter and the union had not made an industry-wide claim. The Commission held that the clause was not related to the security of employment of employees to be covered by the agreement and therefore contravened section 172(a) of the Fair Work Act 2009. The Commission also found that the clause did not fall within the permitted matters outlined in section 409(1) of the Act.

The Fair Work Commission ordered that a protected action ballot be held and that the contractors clause be removed from the enterprise agreement. The Commission also declared that the clause was void and of no effect. The employer was ordered to pay the union's costs of the proceedings.