DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2018/923)

POLYSEAL WATERPROOFING TECHNOLOGIES PTY LIMITED / CFMEU COLLECTIVE AGREEMENT 2018

Building, metal and civil construction industries
COMMISSIONER JOHNS	MELBOURNE, 5 APRIL 2018

Application for approval of the Polyseal Waterproofing Technologies Pty Limited / CFMEU Collective Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Polyseal Waterproofing Technologies Pty Limited / CFMEU Collective Agreement 2018 (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] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] 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.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 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 involved an application for the approval of the Polyseal Waterproofing Technologies Pty Limited / CFMEU Collective Agreement 2018. The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought to have the agreement registered under the Fair Work Act 2009. The employer, Polyseal Waterproofing Technologies Pty Limited, contested the application on various grounds, including that the agreement contained terms that were contrary to public policy and were not reasonably necessary to achieve the legitimate work purposes of the parties.

The legal issues before the Commission were whether the terms of the collective agreement were contrary to public policy, whether they were reasonably necessary to achieve the legitimate work purposes of the parties, and whether the agreement met the requirements for registration under the Fair Work Act. The Commission needed to consider the terms of the agreement in the context of the broader industrial relations framework and the public interest.

In delivering its decision, the Commission found that certain provisions of the agreement were indeed contrary to public policy and therefore invalid. These provisions included those that purported to prevent employees from making complaints to the Commission or from participating in protected industrial action. The Commission held that such provisions were not reasonably necessary to achieve the legitimate work purposes of the parties, as they effectively deprived employees of their statutory rights and protections. However, the Commission did approve the balance of the agreement, finding that it met the requirements for registration under the Fair Work Act.

The Fair Work Commission approved the Polyseal Waterproofing Technologies Pty Limited / CFMEU Collective Agreement 2018, subject to the invalidity of certain provisions. The Commission ordered that the agreement be registered, but with the specified provisions removed. The employer and the union were directed to notify the Commission of the registration within the specified timeframe and to take such steps as were necessary to give effect to the decision. The decision provides important guidance on the limits of what can be included in a collective agreement and the role of the Commission in ensuring that agreements comply with the Fair Work Act and broader public policy considerations.

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