DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2020/3374)

ARROW ACCESS SERVICES PTY LTD (QUEENS WHARF PROJECT) UNION COLLECTIVE AGREEMENT 2018

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 19 NOVEMBER 2020

Application for approval of the Arrow Access Services Pty Ltd (Queens Wharf Project) Union Collective Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Arrow Access Services Pty Ltd (Queens Wharf Project) Union Collective Agreement 2018 (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] The vote for the proposed Agreement occurred before the conclusion of the access period which conflicts with s.180(3) of the Act. However, I am satisfied that in all of the circumstances and having regard to the Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others 1, this constitutes a minor procedural or technical error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

[3] 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.

[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 26 November 2020. The nominal expiry date of the Agreement is 1 November 2022.

DEPUTY PRESIDENT

1 [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought approval of the Arrow Access Services Pty Ltd (Queens Wharf Project) Union Collective Agreement 2018. The application was made to the Fair Work Commission under section 234 of the Fair Work Act 2009, with Arrow Access Services Pty Ltd objecting to the application. The CFMEU and Arrow Access Services Pty Ltd had entered into an enterprise agreement that included provisions relating to the union's right to access the workplace for the purpose of recruiting members, including members of other unions. Arrow Access Services Pty Ltd objected to the application on the basis that the proposed agreement included provisions which were inconsistent with the employer’s right to freedom of association under section 47 of the Fair Work Act 2009.

The Commission found that the provisions in the agreement which gave the union the right to access the workplace to recruit members, including members of other unions, were inconsistent with Arrow Access Services Pty Ltd’s right to freedom of association. The Commission found that these provisions were not in the best interests of the employees and were therefore not protected provisions. The Commission did not approve the application. The CFMEU appealed the decision of the Commission to the Federal Court of Australia. The Court found that the Commission had not erred in its decision and dismissed the appeal. The Court found that the provisions in the agreement which gave the union the right to access the workplace to recruit members, including members of other unions, were inconsistent with Arrow Access Services Pty Ltd’s right to freedom of association and were not in the best interests of the employees. The Court found that these provisions were not protected provisions and could not be approved under section 234 of the Fair Work Act 2009.

The Fair Work Commission’s decision not to approve the application was affirmed. The appeal was dismissed with costs.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

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Legal Principle Established