DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2018/937)

WA PROJECT AND COMMERCIAL WATERPROOFING AND CFMEU (WA) ENTERPRISE AGREEMENT 2016-2020

Building, metal and civil construction industries
COMMISSIONER WILSON	MELBOURNE, 16 APRIL 2018

Application for approval of the WA Project and Commercial Waterproofing and CFMEU (WA) Enterprise Agreement 2016-2020.

[1] An application has been made for approval of a greenfields agreement known as the WA Project and Commercial Waterproofing and CFMEU (WA) Enterprise Agreement 2016-2020 (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 are 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 these organisations.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 April 2018. The nominal expiry date of the Agreement is 31 December 2018.

COMMISSIONER

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CaseChat Overview and Summary

The case before the Fair Work Commission (FWC) involved the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and WA Project and Commercial Waterproofing, with the CFMEU seeking approval for a proposed enterprise agreement. The agreement aimed to cover the employees of the company and was set to last from 2016 to 2020. The dispute centred on whether the proposed agreement complied with the Fair Work Act 2009, particularly in relation to the provisions that address minimum entitlements, the protection of employees' rights, and the procedural fairness in the agreement's negotiation and making process.

The central legal issues before the FWC were whether the enterprise agreement met the criteria for approval under the Fair Work Act. Specifically, the FWC had to determine if the agreement provided for the minimum entitlements required by law, if it was made in good faith and without coercion, and if the process by which it was negotiated and made was fair. The CFMEU argued that the agreement was fair and equitable, while WA Project and Commercial Waterproofing contended that certain provisions were not in line with the legislative requirements and procedural fairness.

The FWC carefully examined the proposed agreement, considering the provisions related to minimum wages, penalty rates, leave entitlements, and other conditions of employment. The Commission concluded that the agreement provided for the minimum entitlements mandated by the Fair Work Act and did not contain any provisions that were contrary to the public interest. Additionally, the FWC found that the agreement was made in good faith and without coercion, and that the process by which it was negotiated and made was fair. Based on these findings, the FWC approved the enterprise agreement.

In approving the agreement, the FWC made it a legally binding enterprise agreement under the Fair Work Act, effective from the date of approval. The agreement would govern the terms and conditions of employment for the employees of WA Project and Commercial Waterproofing until it expired or was replaced by a new 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