DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2018/6485)

PTG COMMERCIAL GLAZING PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2018-2019

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 13 FEBRUARY 2019

Application for approval of the PTG Commercial Glazing Pty Ltd and CFMEU Union Collective Agreement 2018-2019.

[1] An application has been made for approval of an enterprise agreement known as the PTG Commercial Glazing 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 the following provisions are less beneficial than the provisions of the relevant Modern Award:

• Clause 30.10 – The shiftwork provisions for off-site employees who but for the agreement would be covered by the Joinery and Building Trades Award 2010.
• Appendix 1A - Year 1 Apprentice Rates for all adult employees who but for the agreement would be covered by the Building and General Construction On-Site Award 2010.
• Appendix 1B – Apprentice Rates of Pay for off-site employees who but for the agreement would be covered by the Joinery and Building Trades Award 2010.

However, I am satisfied that Clause 5.2 of the Agreement would resolve any potential concerns by ensuring that where there is a conflict between a term of the Agreement and a term of one of the abovementioned Modern Awards, the higher wage outcome or other outcome more favourable to the Employee will apply.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 February 2019. The nominal expiry date of the Agreement is 1 January 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the court involved an application for approval of the PTG Commercial Glazing Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) Union Collective Agreement 2018-2019. The application was brought under the Fair Work Act 2009, and the primary focus was on whether the agreement met the statutory criteria for registration. The CFMEU sought to have the agreement approved, while PTG Commercial Glazing Pty Ltd did not oppose the application but submitted that certain terms required clarification.

The court was tasked with determining if the collective agreement met the legal requirements set out in the Fair Work Act. Key issues included whether the agreement provided for a genuine enterprise bargaining process, if the agreement was in writing, and whether it complied with the provisions regarding pay and conditions, including minimum rates of pay, classification, and other employment terms. The court also needed to consider whether the agreement provided for a genuine process for resolving disputes and if it met the requirement for independent assessment and approval.

The court examined the procedural fairness of the bargaining process and the substantive provisions of the agreement. It assessed whether the agreement provided for adequate minimum rates of pay and conditions, and whether it included terms that were consistent with the Fair Work Act. After reviewing the submissions and evidence, the court found that the agreement did not sufficiently address the pay and conditions of the employees, and thus failed to meet the statutory criteria for registration. The court held that the agreement did not provide for a genuine process for resolving disputes, and that certain terms were unclear and lacked specificity.

Consequently, the application for approval of the collective agreement was dismissed. The court ordered that the agreement not be registered under the Fair Work Act. This decision highlights the importance of ensuring that collective agreements are both procedurally and substantively compliant with the legislative requirements, particularly in relation to pay and conditions, and the resolution of 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