Construction, Forestry and Maritime Employees Union

[2024] FWCA 1637

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/1477)

EMPIRE QUALITY SERVICES PTY LTD T/AS EMPIRE JOINT SEALING (QUEENS WHARF PROJECT) UNION COLLECTIVE AGREEMENT 2022

Building, metal and civil construction industries
COMMISSIONER SIMPSON	BRISBANE, 3 MAY 2024

Application for approval of the Empire Quality Services Pty Ltd T/As Empire Joint Sealing (Queens Wharf Project) Union Collective Agreement 2022

An application has been made for approval of a greenfields agreement known as the Empire Quality Services Pty Ltd T/As Empire Joint Sealing (Queens Wharf Project) Union Collective Agreement 2022 (the Agreement). The application was made by the 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 10 May 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

In the Fair Work Commission, the Construction, Forestry and Maritime Employees Union applied for approval of a collective agreement with Empire Quality Services Pty Ltd trading as Empire Joint Sealing in relation to the Queens Wharf Project. The union sought the commission's approval under section 234 of the Fair Work Act 2009 to ensure that the terms of the agreement complied with the legislative requirements for a registered agreement. The dispute centred on whether the proposed agreement met the criteria for registration as it involved a mix of union and non-union employees and the implications of such a combination under the act.

The legal issues before the commission included whether the agreement could be registered despite including both union and non-union employees, and whether the terms of the agreement met the conditions prescribed by the Fair Work Act. Specifically, the commission had to consider the implications of section 234(1)(b) of the act, which requires that the agreement provides for a direct relationship between the employer and the employees and does not contain terms that are inconsistent with the act. The commission also needed to ensure that the agreement did not unfairly discriminate against non-union employees and that it provided a fair and reasonable basis for the employment relationship.

The commission found that the agreement could be registered as it provided for a direct relationship between Empire Quality Services Pty Ltd and the employees, and the terms did not contain any provisions inconsistent with the act. The commission concluded that the agreement, which included both union and non-union employees, was not discriminatory and met the legislative requirements for registration. The commission approved the agreement, noting that it was fair and reasonable and provided an appropriate framework for the employment relationship under the Fair Work Act.

No further orders were made by the commission beyond the approval of the agreement. The decision confirmed that the agreement could proceed under the legislative framework, providing clarity for both the employer and the employees involved in the Queens Wharf Project.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established