Construction, Forestry and Maritime Employees Union

[2024] FWCA 2037

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/1788)

POLYSEAL WATERPROOFING TECHNOLOGIES PTY LTD (QUEENS WHARF PROJECT) UNION COLLECTIVE AGREEMENT 2022

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 5 JUNE 2024

Application for approval of the Polyseal Waterproofing Technologies Pty Ltd (Queen Wharf Project) Union Collective Agreement 2022

An application has been made for approval of an enterprise agreement known as the Polyseal Waterproofing Technologies Pty Ltd (Queen Wharf Project) Union Collective Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Construction, Forestry and Maritime Employees Union. The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 17 April 2024 and the Agreement was made on 10 May 2024 Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023

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.

The Construction, Forestry, Maritime 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 the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 June 2024. The nominal expiry date of the Agreement is 1 November 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, the Construction, Forestry and Maritime Employees Union, sought approval for a collective agreement entered into with Polyseal Waterproofing Technologies Pty Ltd concerning the Queen Wharf Project. The dispute was heard by the Fair Work Commission, which had to determine whether the terms of the agreement met the statutory requirements under the Fair Work Act 2009. The union argued that the agreement was necessary to ensure fair and equitable terms and conditions of employment for its members, while the employer contended that certain provisions of the agreement were overly restrictive and detrimental to business operations. The legal issues before the Commission involved assessing whether the agreement complied with the good faith bargaining obligations and whether it contained any terms that were contrary to public policy or unfair. The Commission considered the principles of good faith bargaining, the necessity of the terms for the protection of employees, and the potential impact on the employer’s ability to conduct business efficiently. After evaluating the evidence and submissions, the Fair Work Commission found that the agreement substantially complied with the statutory requirements. The Commission concluded that while some provisions were restrictive, they were necessary to protect the employees’ rights and were not contrary to public policy or unfair. Consequently, the Commission approved the collective agreement, noting that the balance between the rights of the employees and the operational needs of the employer had been appropriately managed within the agreement. The Commission's decision was based on a detailed analysis of the bargaining process and the specific terms of the agreement, ensuring that it met the legislative standards.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established