Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 6470

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/7970)

POLYSEAL WATERPROOFING QLD PTY LTD AND CFMEU UNION
COLLECTIVE AGREEMENT 2020-2022

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 28 OCTOBER 2021

Application for approval of the Polyseal Waterproofing QLD 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 Polyseal Waterproofing QLD 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 28 October 2021 and, in accordance with s 54, will operate from 4 November 2021. The nominal expiry date of the Agreement is 31 December 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application for the approval of a collective agreement between Polyseal Waterproofing QLD Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The Fair Work Commission (FWC) was tasked with assessing whether the agreement complied with the relevant statutory provisions. The applicants sought to have the agreement registered and approved as a protected action (closed) agreement, which would allow the agreement's terms and conditions to be enforced against all employees covered by the agreement, regardless of whether they were union members.

The central legal issue before the FWC was whether the collective agreement met the requirements for approval under the Fair Work Act 2009. Specifically, the FWC needed to determine if the agreement contained terms that were not contrary to public policy or otherwise unlawful and whether it had been negotiated in good faith. The FWC also had to consider if the agreement met the threshold for protected action (closed) status, which required the union to have a sufficient level of support from employees covered by the agreement.

In assessing the application, the FWC examined the terms of the agreement and the evidence provided by both parties. The FWC found that the agreement contained terms that were not contrary to public policy or otherwise unlawful. The FWC also found that the agreement had been negotiated in good faith and met the threshold for protected action (closed) status. Consequently, the FWC approved the collective agreement and registered it as a protected action (closed) agreement.

The final orders of the FWC were that the Polyseal Waterproofing QLD Pty Ltd and CFMEU Union Collective Agreement 2020-2022 be approved and registered as a protected action (closed) agreement. This decision meant that the terms and conditions of the agreement would be enforceable against all employees covered by the agreement, regardless of union membership.

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