CPB Contractors Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCAFC 70

CPB Contractors Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCAFC 70

Clause 3.3 does not provide a method of election for employees or employers to opt out of the agreement and is not an unlawful term for the purposes of s 194(ba) of the Fair Work Act, nor inconsistent with s 58. The Full Bench erred in its construction.

Parties
Applicant: CPB Contractors Pty Limited; First Respondent: Construction, Forestry, Maritime, Mining and Energy Union; Second Respondent: Australian Workers' Union; Third Respondent: Fair Work Commission
Jurisdiction
Australia
Judgment Date
02 May 2019
Procedural Posture
Original Jurisdiction Application for Declaratory Relief and Order in the Nature of Certiorari / Judgment
Outcome
Application allowed in part
Legal Topics
Enterprise Agreements, Coverage Clauses, Fair Work Act Unlawful Terms, Opt Out Clauses, Statutory Interpretation
Industrial Law Statutory Construction Enterprise Agreements Coverage Clauses Fair Work Act Unlawful Terms Opt Out Clauses Statutory Interpretation

Case Brief

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Parties

CPB Contractors Pty Limited

Applicant

Construction, Forestry, Maritime, Mining and Energy Union

First Respondent

Australian Workers' Union

Second Respondent

Fair Work Commission

Third Respondent

Procedural Posture

Original Jurisdiction Application for Declaratory Relief and Order in the Nature of Certiorari / Judgment

Legal Issues

  1. 1 Whether clause 3.3 of the CPB Contractors NSW Civil Works Enterprise Agreement 2017-2021 is unlawful for the purposes of s 194(ba) of the Fair Work Act 2009 (Cth)
  2. 2 Whether clause 3.3 is inconsistent with s 58(2) of the Fair Work Act 2009 (Cth)
  3. 3 Construction and application of s 194(ba)

Ratio Decidendi

Clause 3.3 does not provide a method of election for employees or employers to opt out of the agreement and is not an unlawful term for the purposes of s 194(ba) of the Fair Work Act, nor inconsistent with s 58. The Full Bench erred in its construction.

Court Disposition

Application allowed in part

Orders

  • Declaration that the final paragraph of clause 3.3 is not an unlawful term for the purposes of s 194(ba) of the Fair Work Act 2009 (Cth) and does not render clause 3.3 unlawful
  • Declaration that the final paragraph of clause 3.3 is not inconsistent with or repugnant to s 58 of the Fair Work Act 2009 (Cth) in respect of new and existing employees as specified