DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2019/2321)

POLYSEAL WATERPROOFING QLD PTY LTD (QUEENS WHARF PROJECT) UNION COLLECTIVE AGREEMENT 2018

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 18 JULY 2019

Application for approval of the Polyseal Waterproofing QLD Pty Ltd (Queens Wharf Project) Union Collective Agreement 2018.

[1] An application has been made for approval of a greenfields agreement known as the Polyseal Waterproofing QLD Pty Ltd (Queens Wharf Project) Union Collective Agreement 2018 (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 25 July 2019. The nominal expiry date of the Agreement is 1 November 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of the Polyseal Waterproofing QLD Pty Ltd (Queens Wharf Project) Union Collective Agreement 2018. The parties involved were the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Polyseal Waterproofing QLD Pty Ltd. The nature of the dispute centred around whether the proposed collective agreement met the statutory requirements for approval under the Fair Work Act 2009. The decision was rendered by the Fair Work Commission, which is the primary industrial relations tribunal in Australia.

The legal issues the court was required to decide included whether the proposed agreement complied with the good faith bargaining requirement and whether it contained provisions that were contrary to public policy or not genuinely bargained. Additionally, the court needed to assess if the agreement was in the best interests of the employees and if it met the criteria for being a protected action under the Fair Work Act. These issues were crucial in determining whether the agreement could be formally approved and registered.

In its reasoning, the Fair Work Commission found that the proposed agreement was genuinely negotiated between the parties and met the good faith bargaining requirements. The court also concluded that the agreement did not contain any provisions that were contrary to public policy. However, the Commission identified some concerns regarding the provisions related to employee entitlements and conditions, which it found to be not in the best interests of the employees. After further negotiations and amendments to the agreement, the Commission was satisfied that the final version met all the statutory requirements and was in the best interests of the employees. Consequently, the Fair Work Commission approved the agreement, and it was registered under the Fair Work Act.

The final orders included the approval and registration of the amended Polyseal Waterproofing QLD Pty Ltd (Queens Wharf Project) Union Collective Agreement 2018, subject to the terms and conditions set out in the decision. The agreement was to be effective from the date of registration and would govern the employment conditions of the employees covered by the agreement. The decision provided clarity on the legal requirements for approving collective agreements and highlighted the importance of genuine bargaining and consideration of employee interests.

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