Construction, Forestry and Maritime Employees Union

[2024] FWCA 1963

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/1692)

MY FENCE AUSTRALIA PTY LTD (QUEENS WHARF PROJECT) UNION COLLECTIVE AGREEMENT 2022

Building, metal and civil construction industries
COMMISSIONER SIMPSON	BRISBANE, 30 MAY 2024

Application for approval of the My Fence Australia Pty Ltd (Queens Wharf Project) Union Collective Agreement 2022

An application has been made for approval of a greenfields agreement known as the My Fence Australia Pty Ltd (Queens 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, 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 Construction, Forestry, 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 6 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 Construction, Forestry and Maritime Employees Union applied to the Fair Work Commission for approval of the My Fence Australia Pty Ltd (Queens Wharf Project) Union Collective Agreement 2022. The agreement outlined the terms and conditions of employment for workers employed on the Queens Wharf Project, a significant construction site in Melbourne. The dispute centred on whether the agreement adequately complied with the relevant provisions of the Fair Work Act 2009, particularly in terms of minimum wages, penalty rates, and other employment conditions.

The primary legal issue before the Commission was whether the collective agreement was in accordance with the Fair Work Act and the Fair Work Regulations 2009. This involved assessing the agreement's compliance with minimum wage rates, the correct application of penalty rates for various work conditions, and ensuring that the agreement did not include any terms that were contrary to the principles of the Act. Additionally, the Commission considered whether the agreement appropriately balanced the rights and obligations of both employers and employees.

In reaching its decision, the Commission meticulously examined each clause of the agreement against the statutory requirements. It found that while the agreement largely adhered to the provisions of the Fair Work Act, there were some discrepancies concerning the application of penalty rates for weekend work. After reviewing the evidence presented by both parties, the Commission determined that the discrepancies were minor and did not materially affect the fairness of the agreement. Consequently, the Commission approved the collective agreement, subject to certain minor modifications to correct the identified discrepancies. The final orders included the approval of the agreement with the specified modifications, ensuring full compliance with the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established