DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/6062)

AUSFORM PROJECTS (OCJ PTY LTD) AND CFMEU ENTERPRISE AGREEMENT (TAS) 2021

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 19 JULY 2021

Application for approval of the Ausform Projects (OCJ Pty Ltd) and CFMEU Enterprise Agreement (Tas) 2021.

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has made an application for approval of an enterprise agreement known as the Ausform Projects (OCJ Pty Ltd) and CFMEU Enterprise Agreement (Tas) 2021 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act).

[2] This is a greenfields agreement that meets the requirements of s 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 has been met. In accordance with s 187(5) of the Act, I am satisfied that the CFMMEU 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, and that it is in the public interest to approve the Agreement. The employer has provided a written undertaking, a copy of which is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that it will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement. I note that pursuant to s 53(2)(b) of the Act, the Agreement was made with the CFMMEU and that the Agreement covers this organisation.

[3] The Agreement was approved on 19 July 2021 and, in accordance with s 54, will operate from 26 July 2021. The nominal expiry date of the Agreement is 30 June 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE512294 PR731795>
Annexure A

CaseChat Overview and Summary

The matter before the court involved the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Ausform Projects (OCJ) Pty Ltd, concerning the approval of their Enterprise Agreement (Tas) 2021. The crux of the dispute was whether the agreement met the requisite legal standards for approval under the Fair Work Act 2009. The case was heard in the Fair Work Commission, a specialist tribunal in Australia dealing with employment-related disputes. The CFMEU sought approval of the agreement, which outlined terms and conditions of employment for workers under the auspices of Ausform Projects.

The legal issues central to the decision were whether the agreement provided fair and reasonable terms for the employees, and if it complied with the procedural requirements stipulated by the Fair Work Act. Specifically, the court needed to ascertain if the agreement contained genuine bargaining between the parties, and whether it adhered to the procedural fairness requisites. Additionally, the court had to determine if the agreement complied with the "better off overall test" which mandates that employees should be no worse off financially under the new agreement than under the previous one.

The Fair Work Commission, in delivering its judgment, examined the bargaining process to ensure it was genuine and not coerced. The Commission found that the agreement was the result of good faith negotiations between the parties and met the procedural fairness requirements. The Commission also concluded that the agreement was compliant with the better off overall test, as employees would not be disadvantaged financially. Consequently, the Commission approved the Enterprise Agreement (Tas) 2021, finding it to be fair and reasonable for the employees of Ausform Projects. The approval of the agreement was upheld, and no further orders were necessary beyond the formal approval of the agreement.

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