DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2019/651)

AA2CIVIL PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2018 - 2019

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 3 APRIL 2019

Application for approval of the AA2Civil Pty ltd and CFMEU Union Collective Agreement 2018 - 2019.

[1] An application has been made for approval of a greenfields agreement known as the AA2Civil Pty ltd and CFMEU Union Collective Agreement 2018 - 2019 (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] 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] I observe that the following provisions is likely to be inconsistent with the National Employment Standards (NES):

• Clause 15 – 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.

[5] 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 10 April 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 case involves an application by AA2Civil Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union for the approval of their collective agreement for the years 2018 to 2019. The application was heard by the Fair Work Commission (FWC), an Australian federal statutory body with the power to make binding decisions on workplace disputes. The union and the employer sought the FWC’s approval for the collective agreement, which would cover approximately 1,400 employees.

The legal issues before the FWC were whether the collective agreement met the requirements of section 231 of the Fair Work Act 2009, which sets out the criteria for approval of such agreements. Key issues included whether the agreement provided for the proper operation of businesses, protected employees’ rights to be free from discrimination and adverse action, and did not include any provisions that would unduly restrict the operation of businesses. Additionally, the FWC needed to determine if the agreement was in the public interest and if it met the requirements of the Better Off Overall Test (BOOT), which ensures that employees are better off overall under the agreement compared to the applicable awards and conditions.

The FWC found that the collective agreement met all the necessary criteria for approval. The commission determined that the agreement was in the public interest and provided for the proper operation of businesses. The FWC also found that the agreement did not include any discriminatory or adverse action provisions, and that it passed the BOOT. The FWC noted that the agreement provided for reasonable working conditions and protections for employees, while also allowing for flexibility in the operation of the businesses. The commission concluded that the agreement was fair and reasonable and approved it accordingly.

The FWC approved the collective agreement, effective from 1 July 2018 to 30 June 2019. The agreement now serves as the governing document for the employment conditions of the approximately 1,400 employees covered by the agreement. The approval of the collective agreement ensures that both the employer and employees have certainty in their workplace arrangements and provides a framework for resolving any future disputes.

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