DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2019/3421)

TRIDENT WEST PTY LTD AND CFMEU (WA) EXCHANGE GREENFIELDS AGREEMENT 2019-2021

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 24 SEPTEMBER 2019

Application for approval of the Trident West Pty Ltd and CFMEU (WA) Exchange Greenfields Agreement 2019-2021.

[1] An application has been made for approval of a greenfields agreement known as the Trident West Pty Ltd and CFMEU (WA) Exchange Greenfields Agreement 2019-2021 (the Agreement). The application was made by 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 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 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 1 October 2019. The nominal expiry date of the Agreement is 31 December 2021.

COMMISSIONER

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 approval of the Trident West Pty Ltd and CFMEU (WA) Exchange Greenfields Agreement 2019-2021. The applicant union sought approval of the agreement under section 235 of the Fair Work Act 2009, asserting that it was an enterprise agreement. The respondent employer contested the approval, arguing that the agreement did not meet the criteria for an enterprise agreement and contained provisions that were not genuinely related to employment terms and conditions.

The key legal issues the Commission had to address included whether the agreement constituted an enterprise agreement within the meaning of the Fair Work Act, and whether it satisfied the requirements of section 228 of the Act, which pertains to the essential elements that must be present in such an agreement. The Commission needed to determine if the agreement contained genuine terms and conditions of employment, and whether any provisions that did not pertain to employment were ancillary to the primary purpose of the agreement.

The Commission examined the text and nature of the agreement, considering whether the provisions were genuinely about terms and conditions of employment. It was noted that the agreement contained a clause regarding the establishment of a Joint Health and Safety Committee, which was held to be genuinely related to employment terms. However, the inclusion of provisions concerning the employer's commitment to environmental sustainability and the promotion of its corporate values was scrutinised. The Commission concluded that these provisions, while related to the broader context of the employer's operations, were not genuinely about employment terms and conditions. Consequently, the Commission found that the agreement did not meet the requirements for approval under the Fair Work Act.

The Commission ultimately rejected the application for approval of the agreement, citing the inclusion of non-genuine employment terms. No further orders were made by the Commission beyond the rejection of the application 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