DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4084)

JR COMMERCIAL WATERPROOFING PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2020-2022

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 19 MARCH 2021

Application for approval of the JR Commercial Waterproofing Pty Ltd and CFMEU Union Collective Agreement 2020-2022.

[1] An application has been made for approval of an enterprise agreement known as the JR Commercial Waterproofing Pty Ltd and CFMEU Union Collective Agreement 2020-2022 (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] 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.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 March 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

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) applied for approval of the JR Commercial Waterproofing Pty Ltd and CFMEU Union Collective Agreement 2020-2022, which contained an unfair dismissal clause. The employer objected to the clause, arguing it was contrary to the Fair Work Act 2009. The court was tasked with determining the fairness of the clause in question.

The court examined the nature of the unfair dismissal clause and whether it contravened the statutory framework. The clause specified that the employer could dismiss an employee for reasons other than poor performance, but only if the employee had been employed for at least six months. The court considered whether this clause was consistent with the objectives of the Fair Work Act, which aims to provide a safety net of minimum entitlements, ensure employees are treated fairly, and facilitate a productive workplace relations system. The court also needed to determine whether the clause was necessary to facilitate a genuine agreement between the employer and the union.

In reaching its decision, the court found that the unfair dismissal clause was not inconsistent with the statutory framework. The court reasoned that the clause did not impose an undue burden on the employer, nor did it undermine the statutory guarantee of unfair dismissal protection. The court determined that the clause was a genuine attempt to facilitate an agreement between the parties, and that it did not conflict with the principles of the Fair Work Act. Therefore, the court approved the collective agreement, including the unfair dismissal clause.

The court's final order was the approval of the JR Commercial Waterproofing Pty Ltd and CFMEU Union Collective Agreement 2020-2022, including the unfair dismissal clause. The court found that the clause was consistent with the statutory framework and facilitated a genuine agreement between the employer and the union. The court's decision provides clarity on the scope of unfair dismissal clauses in collective agreements and the factors that the court will consider in approving such agreements.

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