Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 6443

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/7866)

SURFSIDE POOL CONSTRUCTIONS PTY LTD (QUEENS WHARF PROJECT) UNION COLLECTIVE AGREEMENT 2018

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 27 OCTOBER 2021

Application for approval of the Surfside Pool Constructions Pty Ltd (Queens Wharf Project) Union Collective Agreement 2018

[1] An application has been made for approval of a greenfields agreement known as the Surfside Pool Constructions 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 3 November 2021. The nominal expiry date of the Agreement is 1 November 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union sought approval of the Surfside Pool Constructions Pty Ltd (Queens Wharf Project) Union Collective Agreement 2018. The primary dispute centred on the terms and conditions of employment for workers involved in the construction of the Queens Wharf Project. The Commission was tasked with determining whether the proposed agreement met the statutory requirements under the Fair Work Act 2009 and whether it was fair and appropriate for the employees involved.

The central legal issues the Commission had to address were whether the agreement provided for minimum entitlements and conditions that met the "better off overall test" and whether it complied with the procedural requirements for approval. The Commission also needed to consider if the agreement was consistent with the objects of the Act, including promoting high levels of employment and economic performance, and whether it was procedurally sound.

In its reasoning, the Commission examined the proposed agreement's provisions to ensure they did not undercut minimum standards set by the National Employment Standards and other applicable awards. It also evaluated if the agreement had been genuinely negotiated between the employer and the union. The Commission found that the agreement was procedurally valid, having been negotiated in good faith, and that it did not undermine minimum entitlements. It also concluded that the agreement was fair and appropriate for the employees, passing the better off overall test.

As a result, the Commission approved the Surfside Pool Constructions Pty Ltd (Queens Wharf Project) Union Collective Agreement 2018. This approval formalises the agreement's terms and conditions, which will now apply to the workers involved in the Queens Wharf Project.

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