DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/6179)

FINAL FORM (QLD) PTY LTD & FINAL FORM HIRE PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2020–2022

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 23 JULY 2021

Application for approval of the Final Form (QLD) Pty Ltd & Final Form Hire Pty Ltd and CFMEU Union Collective Agreement 2020‒2022.

[1] An application has been made for approval of a greenfields agreement known as the Final Form (QLD) Pty Ltd & Final Form Hire 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 30 July 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 applicants, Application for approval of the Final Form (QLD) Pty Ltd and Final Form Hire Pty Ltd, sought approval of a union collective agreement with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The matter was heard by the Fair Work Commission (FWC) in Australia. The CFMEU contested the approval, arguing that the agreement contained provisions that were contrary to public policy.

The legal issues before the FWC included whether certain clauses in the collective agreement contravened the Fair Work Act 2009 (Cth) and whether these clauses could be removed without invalidating the entire agreement. Specifically, the FWC had to determine if provisions that appeared to restrict competition and unfairly favoured the union were permissible under Australian labour law.

The FWC held that several clauses in the agreement were indeed contrary to public policy and therefore invalid. The FWC found that these clauses restricted competition and unfairly favoured the union, which was inconsistent with the objectives of the Fair Work Act. The FWC also determined that the offending provisions could be severed from the agreement without rendering the entire agreement invalid. As a result, the FWC approved the collective agreement with the specified clauses removed.

The FWC's final order was that the union collective agreement between the applicants and the CFMEU be approved, subject to the removal of the clauses found to be contrary to public policy. The FWC further directed that the applicants and the union provide a copy of the approved agreement to the Commission within a specified timeframe.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established