Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 5673

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/7010)

TNP PLASTERING PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2020–2022

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 14 SEPTEMBER 2021

Application for approval of the TNP Plastering Pty Ltd and CFMEU Union Collective Agreement 2020‒2022

[1] An application has been made for approval of a greenfields agreement known as the TNP Plastering Pty Ltd and CFMEU Union Collective Agreement 2020‒2022 (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 21 September 2021. The nominal expiry date of the Agreement is 31 December 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 for a collective agreement entered into with TNP Plastering Pty Ltd for the period 2020 to 2022. The applicant argued that the agreement was necessary to ensure fair and equitable terms and conditions for its members, particularly in light of the economic challenges posed by the COVID-19 pandemic. The dispute centred on whether the agreement complied with the relevant statutory provisions and if it could be considered to be in the best interests of the employees involved.

The central legal issues revolved around the compliance of the collective agreement with the Fair Work Act 2009 and the Fair Work Regulations 2009. Specifically, the Commission needed to determine whether the agreement met the requirements for being a protected action agreement, including whether it provided for better terms and conditions of employment than those provided by any applicable award or agreement, and if it was in the best interests of the employees covered by the agreement. The Commission also had to consider whether the agreement was consistent with the public interest and did not undermine the operation of the Fair Work Act.

The Fair Work Commission found that the collective agreement was in compliance with the statutory requirements. The agreement provided for terms and conditions that were better than those provided by the applicable awards, and it was deemed to be in the best interests of the employees. The Commission took into account the economic impact of the COVID-19 pandemic, which necessitated adjustments to ensure the continued viability of the employer and the protection of jobs. The Commission concluded that the agreement was consistent with the public interest and did not undermine the operation of the Fair Work Act. Accordingly, the Commission approved the collective agreement.

The Fair Work Commission approved the TNP Plastering Pty Ltd and CFMEU Union Collective Agreement 2020‒2022, subject to certain conditions. The agreement was to be registered with the Commission and would have effect from the date of approval. The Commission noted that the agreement was to remain in force until 31 December 2022, or until terminated earlier in accordance with its provisions. The approval was contingent upon the parties providing the Commission with any required information or documents within the specified timeframes.

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