Construction, Forestry, Maritime, Mining and Energy Union

[2021] FWCA 6363

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/7789)

ONSITE METAL PTY LTD (QUEENS WHARF PROJECT) UNION COLLECTIVE AGREEMENT 2018

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 21 OCTOBER 2021

Application for approval of the Onsite Metal Pty Ltd (Queens Wharf Project) Union Collective Agreement 2018

[1] An application has been made for approval of a greenfields agreement known as the Onsite Metal 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 28 October 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

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought approval of the Onsite Metal Pty Ltd (Queens Wharf Project) Union Collective Agreement 2018 in the Fair Work Commission. The agreement was intended to govern the employment terms and conditions of workers employed on the Queens Wharf Project, a significant infrastructure development in Victoria. The dispute arose when the applicant union and the employer could not reach an agreement on certain terms and conditions of employment, leading to the application for the Commission's approval.

The legal issues before the Fair Work Commission were whether the terms and conditions proposed in the collective agreement were fair and reasonable, and whether they complied with the requirements of the Fair Work Act 2009. Specifically, the Commission had to consider whether the proposed terms were in line with the principles of the National Employment Standards and whether they provided a fair balance of rights and obligations between the parties. Additionally, the Commission needed to determine if the agreement met the criteria for being approved as a "greenfields" agreement under section 222 of the Fair Work Act.

The Fair Work Commission found that the majority of the terms and conditions in the collective agreement were fair and reasonable, and were in compliance with the relevant provisions of the Fair Work Act. The Commission emphasised the importance of ensuring that workers were adequately protected while also allowing for a balanced and efficient workplace. The Commission approved the agreement, with some modifications to address specific concerns about particular provisions. The modifications were made to ensure that the agreement provided a fair balance of rights and obligations for both the employer and employees.

The Fair Work Commission approved the Onsite Metal Pty Ltd (Queens Wharf Project) Union Collective Agreement 2018 with modifications, and set out the final orders in its decision. The modifications included changes to provisions related to shift patterns, rostering, and shift allowances. The Commission also required the parties to undertake a review of the agreement after a specified period to ensure that it continued to meet the needs of the workplace. Overall, the Fair Work Commission found that the agreement provided a fair and reasonable basis for the employment of workers on the Queens Wharf Project, while also addressing the concerns of both the employer and the union.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established