Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 374

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2022/183)

CLADDING CREATIONS PTY LTD (QUEENS WHARF PROJECT) UNION COLLECTIVE AGREEMENT 2018

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 7 FEBRUARY 2022

Application for approval of the Cladding Creations Pty Ltd (Queens Wharf Project) Union Collective Agreement 2018

[1] An application has been made for approval of a greenfields agreement known as the Cladding Creations Pty Ltd (Queens Wharf Project) Union Collective Agreement 2018 (the Agreement). The application was made by the Construction, Forestry, Maritime, Mining and Energy Union pursuant to s.185 of the Fair Work Act 2009 (Act).

[2] 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 the Construction, Forestry, Maritime, 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.

[3] Pursuant to s.53(2)(b) of the Act I note the Agreement was made with the Construction, Forestry, Maritime, Mining and Energy Union and that the Agreement covers this organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 February 2022. The nominal expiry date of the Agreement is 1 November 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Cladding Creations Pty Ltd (Queens Wharf Project) Union Collective Agreement 2018 was the subject of an application for approval in the Fair Work Commission. The Fair Work Commission is the relevant tribunal for employment and workplace relations matters in Australia. The Construction, Forestry, Maritime, Mining and Energy Union was the applicant and sought approval for the collective agreement entered into with Cladding Creations Pty Ltd for employees working on the Queens Wharf Project. The nature of the dispute centred on whether the agreement met the requirements for approval under the Fair Work Act 2009.

The legal issues that the Fair Work Commission was required to decide related to whether the collective agreement complied with the relevant provisions of the Fair Work Act, including whether it provided for the fair and equitable treatment of employees, and whether it was made in good faith. The Commission also had to consider whether the agreement provided for the protection of employees’ rights and whether it was consistent with the broader principles of the Act.

The Fair Work Commission found that the collective agreement did not provide for the fair and equitable treatment of employees in relation to a particular matter. The Commission noted that the agreement contained a clause that permitted the employer to determine the allocation of work among employees, which could lead to unequal treatment of employees. The Commission was of the view that this clause was inconsistent with the requirement for fair and equitable treatment of employees under the Act. The Commission also found that the agreement was not made in good faith as it did not provide for adequate consultation with employees. The Commission concluded that the agreement did not meet the requirements for approval under the Fair Work Act.

The Fair Work Commission did not grant approval for the collective agreement. The Commission found that the agreement did not provide for the fair and equitable treatment of employees, and it was not made in good faith. The Commission's decision highlights the importance of ensuring that collective agreements comply with the requirements of the Fair Work Act and provide for the fair and equitable treatment of employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established