DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4027)

LEWIS FABRICATIONS PTY LTD (QUEENS WHARF PROJECT) UNION COLLECTIVE AGREEMENT 2018

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 16 MARCH 2021

Application for approval of the Lewis Fabrications Pty Ltd (Queens Wharf Project) Union Collective Agreement 2018.

[1] An application has been made for approval of a greenfields agreement known as the Lewis Fabrications Pty Ltd (Queens Wharf Project) Union Collective Agreement 2018 (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 23 March 2021. The nominal expiry date of the Agreement is 1 November 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for the approval of the Lewis Fabrications Pty Ltd (Queens Wharf Project) Union Collective Agreement 2018. The dispute arose from the negotiation and proposed terms of employment between the CFMEU and Lewis Fabrications Pty Ltd, focusing on various aspects of workplace conditions and agreements. The Fair Work Commission was tasked with determining whether the proposed agreement met the necessary statutory requirements and was fair and reasonable in its terms.

The central legal issues before the Commission involved the interpretation and application of sections of the Fair Work Act 2009, specifically concerning the provisions for the registration of a new or amended collective agreement. The Commission had to consider whether the agreement complied with the formal requirements of the Act, including the procedural fairness and the substantive fairness of the terms and conditions outlined in the agreement. Additionally, the Commission needed to assess whether the agreement contained provisions that were contrary to public policy or which failed to meet the threshold for being considered a genuine agreement.

In its decision, the Commission found that the proposed agreement largely complied with the formal requirements of the Fair Work Act. However, certain provisions were identified as being potentially contrary to public policy, specifically those that sought to exclude the application of general awards or to create terms that were not genuinely negotiated. The Commission emphasised the importance of genuine negotiation and the avoidance of any clauses that might undermine the legislative intent behind the protection of employees' rights. After considering the arguments presented by both parties, the Commission approved the agreement with modifications to ensure compliance with the Act and public policy considerations.

The final orders of the Commission included the approval of the collective agreement with specific amendments to ensure it met the statutory requirements and did not contravene public policy. The Commission mandated that certain provisions be removed or altered to align with the principles of fairness and genuine negotiation, and it directed that the modified agreement be submitted for registration in accordance with the Fair Work Act. This decision underscores the importance of ensuring that collective agreements are not only legally compliant but also reflect fair and genuine negotiations between employers and employees.

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