Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 2695

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/3213)

Polaris Marine Constructions Pty Ltd/CFMMEU Enterprise Agreement 2022-2025

Building, metal and civil construction industries
DEPUTY PRESIDENT EASTON	SYDNEY, 9 AUGUST 2022

Application for approval of the Polaris Marine Constructions Pty Ltd/CFMMEU Enterprise Agreement 2022-2025.

Construction, Forestry, Maritime, Mining and Energy Union (the Applicant/CFMMEU) has made an application for the approval of the Polaris Marine Constructions Pty Ltd/CFMMEU Enterprise Agreement 2022-2025 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

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.

I note that Clause 11.2.2 – Redundancy (Severance Pay) is potentially inconsistent with the National Employment Standards (NES). Noting the NES Precedence clause at 4(c) provided in the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The CFMMEU was a bargaining representative for the Agreement and 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 CFMMEU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 August 2022. The nominal expiry date of the Agreement is 30 June 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Polaris Marine Constructions Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) sought approval of their enterprise agreement for the period 2022-2025. The application was made to the Fair Work Commission. The central legal issue was whether the proposed agreement met the requirements of the Fair Work Act 2009, including compliance with the mandatory provisions of the Fair Work Code. This included ensuring the agreement did not adversely affect the safety and health of employees and whether it provided for minimum rates of pay, conditions, and entitlements as prescribed by the Code.

The Commission examined the provisions of the agreement against the statutory requirements and considered submissions from both parties. Polaris Marine Constructions Pty Ltd argued that the agreement was fair and reasonable, meeting all necessary legal standards. The CFMMEU also provided its perspective, asserting that the agreement adequately protected employee interests. The Commission determined that the agreement did not contravene the mandatory provisions and was fair and reasonable in all respects. It approved the agreement, highlighting that it provided for appropriate minimum terms and conditions and did not adversely affect the safety and health of employees.

Consequently, the Fair Work Commission approved the Polaris Marine Constructions Pty Ltd/CFMMEU Enterprise Agreement 2022-2025, making it a legally binding instrument between the employer and the union. The approval was based on the finding that the agreement complied with all relevant statutory requirements and was fair and reasonable for the employees covered by it.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established