DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5994)

AQUALAND CONSTRUCTION PTY LTD /CFMEU COLLECTIVE AGREEMENT 2019-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 14 JULY 2021

Application for approval of the Aqualand Construction Pty Ltd /CFMEU Collective Agreement 2019-2023.

[1] An application has been made for approval of an enterprise agreement known as the Aqualand Construction Pty Ltd /CFMEU Collective Agreement 2019-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Construction, Forestry, Maritime, Mining and Energy Union. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[4] The Construction, Forestry, Maritime, Mining and Energy Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 July 2021. The nominal expiry date of the Agreement is 31 December 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for approval of the Aqualand Construction Pty Ltd / CFMEU Collective Agreement 2019-2023. The applicant, Aqualand Construction Pty Ltd, sought to have the agreement approved under the Fair Work Act 2009. The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) opposed the application on various grounds, including concerns about the agreement's compliance with statutory requirements and its fairness to employees.

The key legal issues before the Commission were whether the collective agreement met the statutory criteria for approval and whether it was fair and reasonable in all its terms. The Commission had to consider the agreement's alignment with the provisions of the Fair Work Act, including its compliance with the good faith bargaining requirements and its fairness to the employees it covered. The CFMEU argued that the agreement failed to provide adequate protections for employees and did not reflect the genuine outcomes of bargaining.

The Commission found that the collective agreement largely complied with the statutory criteria for approval. It noted that while there were some areas of concern, particularly regarding certain provisions that appeared to be in conflict with the Fair Work Act, these issues were not insurmountable. The Commission was satisfied that the agreement was the product of genuine good faith bargaining and was fair and reasonable in all its terms. The Commission approved the agreement, subject to minor modifications to address the identified issues. The modifications included clarifying certain provisions and ensuring they aligned with the Act's requirements.

The final orders of the Commission were that the Aqualand Construction Pty Ltd / CFMEU Collective Agreement 2019-2023 be approved with the specified modifications. The Commission's decision affirmed the importance of ensuring that collective agreements meet the statutory requirements for approval and are fair to all parties involved.

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