Construction, Forestry, Maritime, Mining and Energy Union (105N)

[2022] FWCA 102

[2022] FWCA 102

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union (105N)

(AG2021/8946)

Onsite engineering pty ltd and cfmeu (wa) and AWU (metronet project) greenfields agreement 2021

Building, metal and civil construction industries
COMMISSIONER MATHESON	SYDNEY, 13 JANUARY 2022

Application for approval of the Onsite Engineering Pty Ltd and CFMEU (WA) and AWU (Metronet Project) Greenfields Agreement 2021.

1. An application has been made for approval of a greenfields agreement known as the Onsite Engineering Pty Ltd and CFMEU (WA) and AWU (Metronet Project) Greenfields Agreement 2021 (Agreement). The application was made by the Construction, Forestry, Maritime, Mining and Energy Union (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

1. This is a greenfields agreement that meets the requirements of s.172(2)(b) of the Act.

1. The Applicant applied for a correction to clause 12.6(a) of the Agreement to replace the words ‘entitled to deduct payment’ with ‘not required to make payment’. I am satisfied that this amendment should be allowed and that it is appropriate to make the amendment pursuant to s.586 of the Act. I make the amendment.

1. The Applicant also applied for a correction to clause 39.2 of the Agreement. In particular, the Applicant sought to replace the words ‘during the life of this Agreement’ where appearing in clause 39.2 of the Agreement with ‘during the term of this Agreement’. I am satisfied that this amendment should be allowed and that it is appropriate to make the amendment pursuant to s.586 of the Act. I make the amendment.

1. I observe that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 6.1(b) of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). The views of each person I know is a bargaining representative were sought in relation to the Undertakings. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a)cause financial detriment to any employee covered by the Agreement; or

(b)result in substantial changes to the Agreement.

1. Pursuant to s.190(3) of the Act, I accept the Undertaking.

1. In accordance with s.187(5)(a) of the Act, I am satisfied that the Construction, Forestry, Maritime, Mining and Energy Union, and the Australian Workers’ Union are entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to the work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

1. Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

1. Pursuant to s.53(2)(b) of the Act, I note that the Agreement was made with the Construction, Forestry, Maritime, Mining and Energy Union and the Australian Workers’ Union, and that the Agreement covers these organisations.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 January 2022. The nominal expiry date of the Agreement is 3 July 2024.

COMMISSIONER

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Annexure A