Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 2115

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/2014)

TRADE GLASS PTY LTD (QUEENS WHARF PROJECT) UNION COLLECTIVE AGREEMENT 2018

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 30 JUNE 2022

Application for approval of the Trade Glass Pty Ltd (Queens Wharf Project) Union Collective Agreement 2018

An application has been made for approval of a greenfields agreement known as the Trade Glass Pty Ltd (Queens Wharf Project) Union Collective Agreement 2018 (the Agreement). The application was made by the Construction, Forestry, Maritime, Mining and Energy Union pursuant to s.185 of the Fair Work Act 2009 (Act).

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 the Construction, Forestry, Maritime, Mining and Energy Union is 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.

Pursuant to s.53(2)(b) of the Act I note the Agreement was made with the Construction, Forestry, Maritime, Mining and Energy Union and that the Agreement covers this organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 July 2022. The nominal expiry date of the Agreement is 1 November 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) was presented with an application for the approval of the Trade Glass Pty Ltd (Queens Wharf Project) Union Collective Agreement 2018. The applicant, Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), sought approval of the agreement which had been negotiated with Trade Glass Pty Ltd. The dispute arose from the CFMEU's application for the agreement to be registered and approved under the Fair Work Act 2009. The CFMEU argued that the agreement contained terms and conditions that were fair and reasonable, and in line with the principles of the industrial relations system. Trade Glass Pty Ltd, the employer, did not contest the fairness or reasonableness of the agreement but raised concerns about the impact of certain provisions on its operational flexibility.

The central legal issue before the FWC was whether the Trade Glass Pty Ltd (Queens Wharf Project) Union Collective Agreement 2018 met the criteria for approval under the Fair Work Act 2009. The FWC had to determine whether the agreement was consistent with the principles of the industrial relations system, including whether it was fair and reasonable, and whether it contained provisions that were necessary to protect the operational needs of the employer. The FWC also needed to consider whether the agreement complied with relevant national employment standards and if any provisions were contrary to public policy.

In its decision, the FWC found that the Trade Glass Pty Ltd (Queens Wharf Project) Union Collective Agreement 2018 was fair and reasonable and complied with the requirements of the Fair Work Act 2009. The FWC acknowledged the need for a balance between the rights of employees and the operational needs of the employer. After reviewing the agreement, the FWC concluded that it contained provisions that were necessary to protect the employer's operational flexibility while also providing fair terms and conditions for the employees. The FWC also found that the agreement did not contravene any national employment standards or public policy.

The FWC approved the Trade Glass Pty Ltd (Queens Wharf Project) Union Collective Agreement 2018 and ordered that it be registered. The decision sets a precedent for similar agreements in the industry, emphasising the importance of balancing the rights of employees with the operational needs of employers. The FWC's approval ensures that the agreement can be implemented, providing a framework for fair and reasonable employment terms in the context of the Queens Wharf Project.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established