Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 6773

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/7945)

WAKE CONCEPTS PTY LTD/ CFMEU SOUTH AUSTRALIA ENTERPRISE AGREEMENT 2021

Building, metal and civil construction industries
COMMISSIONER SIMPSON	BRISBANE, 19 NOVEMBER 2021

Application for approval of the Wake Concepts Pty Ltd/CFMEU South Australia Enterprise Agreement 2021

[1] An application has been made for approval of an enterprise agreement known as the Wake Concepts Pty Ltd/CFMEU South Australia Enterprise Agreement 2021 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). The Agreement is a single enterprise agreement.

[2] I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met.

[3] Noting clause 1.4(b)(iii) of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

[4] The CFMMEU lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the CFMMEU.

[5] The Agreement is approved and will operate in accordance with s.54 of the Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission received an application for approval of the Wake Concepts Pty Ltd/CFMEU South Australia Enterprise Agreement 2021. The application was made by the Construction, Forestry, Maritime, Mining and Energy Union, which represents the employees, and Wake Concepts Pty Ltd, the employer. The agreement, which was intended to govern the terms and conditions of employment for the employees, was submitted for assessment to ensure it met the legal requirements for approval under the Fair Work Act 2009. The central issue before the Commission was whether the enterprise agreement contained all the necessary provisions as outlined in the Fair Work Act and whether it adhered to the principles of genuine agreement, fairness, and good faith.

The Commission examined the enterprise agreement to determine if it included all the mandated provisions such as minimum wages, classification of employees, penalty rates, and other employment conditions. Additionally, the Commission assessed whether the agreement was genuinely negotiated and agreed upon by the parties involved. The Commission also considered if the agreement complied with the broader principles of fairness and good faith, including the protection of vulnerable employees and the avoidance of coercion or undue influence. In reviewing the agreement, the Commission took into account the submissions from both parties and any relevant evidence provided.

After careful consideration, the Fair Work Commission determined that the enterprise agreement met all the necessary requirements under the Fair Work Act. The Commission found that the agreement contained all the mandated provisions and was the product of genuine negotiation between the parties. The Commission also concluded that the agreement was fair and in good faith, with appropriate protections for vulnerable employees and no evidence of coercion or undue influence. Consequently, the Commission approved the enterprise agreement, confirming its validity and enforceability under the Fair Work Act.

The final orders of the Fair Work Commission included the approval of the Wake Concepts Pty Ltd/CFMEU South Australia Enterprise Agreement 2021, effective from the date of the decision. The Commission directed that the approved agreement be registered with the Fair Work Ombudsman and that it be provided to all relevant parties. The Commission also noted that any disputes arising from the agreement would be subject to the dispute resolution processes outlined within the agreement and the Fair Work Act.

Construction, Forestry, Maritime, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established