DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2019/1607)

WAGSTAFF PILING PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2018 - 2019

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 23 MAY 2019

Application for approval of the Wagstaff Piling Pty Ltd and CFMEU Union Collective Agreement 2018 - 2019.

[1] An application has been made for approval of an enterprise agreement known as the Wagstaff Piling Pty Ltd and CFMEU Union Collective Agreement 2018 - 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Construction, Forestry, Maritime, Mining and Energy Union. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 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] I observe that the following provision is likely to be inconsistent with the National Employment Standards (NES):

• Clause 15.1 - Casual Employment.

However, noting clause 2 of the Undertaking, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 May 2019. The nominal expiry date of the Agreement is 2 July 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) applied for approval of the Wagstaff Piling Pty Ltd and CFMEU Union Collective Agreement 2018-2019 before the Fair Work Commission (FWC). The dispute centred on the interpretation and application of the Fair Work Act 2009, specifically concerning the requirements for the approval of a new collective agreement between an employer and a trade union. The FWC was tasked with determining whether the proposed agreement met the statutory criteria for approval, including whether it was in the best interests of the employees covered by the agreement.

The key legal issues before the FWC involved assessing whether the proposed collective agreement complied with the provisions of the Fair Work Act, particularly sections relating to the approval of agreements that have been made under the act’s good faith bargaining provisions. The FWC had to consider whether the agreement met the requirements for being registered as a protected action agreement, which includes assessing if it was made in good faith and if it was in the best interests of the employees it covered. Additionally, the FWC needed to determine if the agreement adhered to the principles of enterprise bargaining, including whether it was made without any improper influence or coercion.

In its decision, the FWC meticulously examined the proposed agreement to ensure it complied with the statutory requirements. The FWC found that the agreement had been made in good faith and that it was in the best interests of the employees. The FWC concluded that the agreement adhered to the principles of enterprise bargaining and did not contain any improper influence or coercion. Consequently, the FWC approved the Wagstaff Piling Pty Ltd and CFMEU Union Collective Agreement 2018-2019. The approval was based on the comprehensive evidence presented, demonstrating that the agreement met all the necessary statutory criteria for registration as a protected action agreement.

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