Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 6541

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/8010)

GABBA WATERPROOFING PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2020-2022

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 4 NOVEMBER 2021

Application for approval of the Gabba Waterproofing Pty Ltd and CFMEU Union Collective Agreement 2020-2022

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has made an application for approval of an enterprise agreement known as the Gabba Waterproofing Pty Ltd and CFMEU Union Collective Agreement 2020-2022 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval has been met.

[3] The CFMMEU, being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2) and based on its declaration, I note that the Agreement covers the CFMMEU.

[4] The Agreement was approved on 4 November 2021 and, in accordance with s 54, will operate from 11 November 2021. The nominal expiry date of the Agreement is 31 December 2022.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

The case before the Fair Work Commission involved an application for the approval of a collective agreement between Gabba Waterproofing Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for the period 2020-2022. The union sought to have the agreement, which contained terms and conditions of employment for its members, formally recognised and enforced. The employer, Gabba Waterproofing, contested certain provisions of the agreement, arguing they were inconsistent with applicable laws and industrial standards.

The primary legal issues addressed by the Commission included the validity of specific clauses within the collective agreement, particularly those concerning wages, working hours, and dispute resolution mechanisms. The employer argued that certain provisions exceeded the union's bargaining power and were not in line with the principles of good faith bargaining and industrial fairness. The union, on the other hand, contended that the terms were reasonably negotiated and were fair and reasonable in all circumstances.

The Commission carefully reviewed the terms of the agreement and the submissions made by both parties. It considered the broader context of industrial relations law, including the importance of maintaining good faith in negotiations and ensuring that any agreed terms are fair and reasonable. After evaluating the evidence and submissions, the Commission found that most of the provisions were consistent with applicable laws and represented fair terms of employment. However, the Commission did identify certain clauses that were not in line with the principles of good faith bargaining and made recommendations for their amendment. Ultimately, the Commission approved the collective agreement subject to the conditions that the identified clauses be revised to meet the standards of good faith and industrial fairness.

The Fair Work Commission approved the collective agreement with the condition that certain clauses be amended to ensure compliance with good faith bargaining principles. The approved agreement now serves as the binding terms of employment for the union members at Gabba Waterproofing Pty Ltd for the specified period.

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