Construction, Forestry and Maritime Employees Union

[2024] FWCA 2102

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/1864)

TJMS LABOUR PTY LTD (QUEENS WHARF PROJECT) UNION COLLECTIVE AGREEMENT 2022

Building services
COMMISSIONER SIMPSON	BRISBANE, 7 JUNE 2024

Application for approval of the TJMS Labour PTY LTD (Queen Wharf Project) Union Collective Agreement 2022

An application has been made for approval of a greenfields agreement known as the TJMS Labour PTY LTD (Queen Wharf Project) Union Collective Agreement 2022 (the Agreement). The application was made by Construction, Forestry and Maritime Employees 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 Construction, Forestry and Maritime Employees 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 Construction, Forestry and Maritime Employees Union and that the Agreement covers this organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 June 2024. The nominal expiry date of the Agreement is 1 November 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Court was an application by the Construction, Forestry and Maritime Employees Union seeking approval of a proposed union collective agreement with TJMS Labour PTY LTD for the Queen Wharf Project. The dispute centred on the specific terms of the proposed agreement, which was to govern the employment conditions of workers engaged on the project. The Court of Appeal was called upon to determine whether the agreement complied with the relevant industrial legislation.

The primary legal issue was whether the terms of the proposed agreement were consistent with the Fair Work Act 2009 and the Fair Work Regulations 2009. In particular, the Court had to consider whether the agreement met the requirements for an "enterprise agreement" under the Act, including whether it had been fairly negotiated and whether it complied with the prescribed "better off overall test." The Court also needed to assess whether the agreement included any terms that were outside the scope of what could be included in an enterprise agreement.

The Court found that the proposed agreement was consistent with the Fair Work Act and the Fair Work Regulations. The Court determined that the agreement had been fairly negotiated and met the better off overall test, as it provided employees with improved conditions and protections compared to the existing award. The Court also held that all terms of the agreement were within the scope of what could be included in an enterprise agreement. Consequently, the Court approved the proposed agreement.

The Court issued an order approving the TJMS Labour PTY LTD (Queen Wharf Project) Union Collective Agreement 2022, subject to the terms and conditions set out in the agreement. The agreement was to be registered with the Fair Work Commission, and the Court's approval was to be noted on the registration. The decision provided clarity on the requirements for union collective agreements in the maritime industry and reinforced the importance of ensuring that such agreements are negotiated fairly and comply with the relevant industrial legislation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established