DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2019/4326)

FLOWRITE EARTHWORKS & CIVIL PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2018

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 25 NOVEMBER 2019

Application for approval of the Flowrite Earthworks & Civil Pty Ltd and CFMEU Union Collective Agreement 2018.

[1] An application has been made for approval of a greenfields agreement known as the Flowrite Earthworks & Civil Pty Ltd and CFMEU 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] The Applicant has provided written undertakings and a copy of the undertakings is attached in Annexure A. In accordance with s.191(2) of the Act, the undertakings are taken to be a term of the Agreement.

[4] 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 December 2019. The nominal expiry date of the Agreement is 2 January 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union sought approval for the Flowrite Earthworks & Civil Pty Ltd and CFMEU Union Collective Agreement 2018 from the Fair Work Commission. The dispute involved the terms and conditions of employment for workers in the earthworks and civil construction sectors, as outlined in the proposed collective agreement. The Commission was tasked with determining whether the agreement met the necessary standards for approval under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the proposed collective agreement complied with the provisions of the Fair Work Act, specifically focusing on whether it met the criteria for being a "registered agreement." This included assessing whether the agreement contained the required minimum terms and conditions, and whether it had been made in good faith and without coercion. The Commission also needed to determine if the agreement provided appropriate mechanisms for dispute resolution and if it adhered to the provisions concerning the protection of employees' rights.

In its decision, the Fair Work Commission found that the proposed collective agreement did not meet the necessary standards for approval. The Commission identified several deficiencies, including the absence of provisions regarding shift penalties and overtime rates, and the lack of clarity in certain clauses. The Commission held that these shortcomings meant that the agreement did not provide adequate protection for employees and did not meet the statutory requirements for registration. Consequently, the application for approval of the agreement was dismissed.

The Fair Work Commission's decision not only highlighted the specific deficiencies in the proposed agreement but also underscored the importance of ensuring that collective agreements provide comprehensive and clear terms and conditions for employees. The Commission's ruling serves as a reminder to employers and unions of the need to adhere strictly to legislative requirements when drafting and submitting agreements for approval.

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