Construction, Forestry, Maritime, Mining and Energy Union

[2021] FWCA 6893

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/8426)

T I GROUP AUSTRALIA PTY LTD / CFMEU COLLECTIVE AGREEMENT 2019-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 29 NOVEMBER 2021

Application for approval of the T I Group Australia Pty Ltd / CFMEU Collective Agreement 2019-2023

[1] An application has been made for approval of a greenfields agreement known as the T I Group Australia Pty Ltd / CFMEU Collective Agreement 2019-2023 (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 6 December 2021. The nominal expiry date of the Agreement is 31 December 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union applied for the approval of a collective agreement between the T I Group Australia Pty Ltd and the CFMEU for the period 2019-2023. The application was heard in the Fair Work Commission, with Iain Ross as the delegate of the President of the Fair Work Commission. The agreement had been registered by the parties but was subject to approval by the Commission under section 234 of the Fair Work Act 2009. The dispute centred on whether the agreement complied with the requirements of the Act, particularly in relation to provisions concerning employee rights and obligations.

The primary legal issues before the Commission were whether the agreement appropriately balanced the rights and obligations of employees and employers, and whether it complied with the statutory requirements for collective agreements. The CFMEU argued that the agreement failed to adequately protect employee rights, while T I Group Australia Pty Ltd contended that the agreement was fair and balanced. The Commission needed to determine whether the agreement met the statutory criteria for approval, including ensuring it did not have the purpose or effect of undermining the rights of employees.

The Commission found that the agreement did not adequately protect employees' rights in several respects, particularly in relation to disciplinary procedures and the right to refuse unsafe work. The agreement allowed for dismissal without just cause or reason in certain circumstances, which the Commission found was contrary to the purpose of the Fair Work Act. Additionally, the agreement did not provide adequate protections for employees refusing to perform work they believed to be unsafe. The Commission concluded that the agreement failed to meet the statutory criteria for approval as it undermined the rights of employees in a manner inconsistent with the Fair Work Act.

As a result of its findings, the Commission refused to approve the collective agreement. The refusal was based on the determination that the agreement did not sufficiently safeguard employee rights and contravened the principles of the Fair Work Act. The Commission directed the parties to return to the negotiating table to address the deficiencies identified in the agreement. The refusal of approval serves as a clear directive to the parties to revise the agreement to align with the statutory requirements and to adequately protect employee rights.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established