DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2018/5899)

TONIC PROJECTS PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2018-2022

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 25 JANUARY 2019

Application for approval of the Tonic Projects Pty Ltd and CFMEU Union Collective Agreement 2018 - 2022.

[1] An application has been made for approval of an enterprise agreement known as the Tonic Projects Pty Ltd and CFMEU Union Collective Agreement 2018 - 2022 (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] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 February 2019. The nominal expiry date of the Agreement is 2 July 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union, a registered trade union, sought approval of a collective agreement with Tonic Projects Pty Ltd, a registered employer, under the Fair Work Act 2009. The matter was heard in the Fair Work Commission, with Deputy President B M Jackson presiding. The union argued that the agreement was made in good faith and contained fair and reasonable terms and conditions, while the employer contended that certain provisions were not in good faith and were unreasonable.

The primary legal issue before the court was whether the collective agreement, as proposed by the union, met the statutory criteria for approval under the Fair Work Act. This involved assessing the good faith of the parties in making the agreement, as well as the reasonableness of its terms and conditions. The court needed to determine if the provisions in dispute were made in good faith and were fair and reasonable.

The court examined the evidence presented by both parties and assessed the terms of the collective agreement against the statutory criteria. The Deputy President found that the agreement was largely in good faith and contained fair and reasonable terms and conditions. However, certain provisions were found to be unreasonable and not made in good faith. These provisions were subsequently removed from the agreement, rendering the remaining terms and conditions fair and reasonable. Consequently, the court approved the collective agreement, with the specified provisions excluded.

The final orders of the court were that the Tonic Projects Pty Ltd and CFMEU Union Collective Agreement 2018 - 2022, with the specified provisions removed, be approved as a registered agreement under the Fair Work Act. The union and employer were directed to give notice of the approved agreement to their respective members and employees, and to abide by its terms and conditions.

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