Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 2113

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/1959)

Ikon Installations (QLD) Pty Ltd (Queens Wharf Project) Union Collective Agreement 2018

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 28 JUNE 2022

Application for approval of the Ikon Installations (QLD) Pty Ltd (Queens Wharf Project) Union Collective Agreement 2018

An application has been made for approval of a greenfields agreement known as the Ikon Installations (QLD) 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 5 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 Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) applied to the Fair Work Commission for approval of the Ikon Installations (QLD) Pty Ltd (Queens Wharf Project) Union Collective Agreement 2018. The respondent, Ikon Installations (QLD) Pty Ltd, opposed the approval on the basis that the agreement contained provisions that were not related to the terms and conditions of employment and therefore should not be approved. The dispute was heard in the Fair Work Commission.

The legal issue before the Commission was whether the provisions in the collective agreement that were not related to the terms and conditions of employment should be approved as part of the agreement. The CFMEU argued that the provisions were necessary to ensure that the agreement was effective and that they were not outside the scope of the agreement. Ikon Installations (QLD) Pty Ltd argued that the provisions were not related to the terms and conditions of employment and should not be approved.

The Commission found that the provisions in question were not related to the terms and conditions of employment and therefore should not be approved as part of the agreement. The Commission noted that the provisions related to the operation of the agreement and the role of the union in the workplace, rather than the rights and obligations of the employees and employers. The Commission held that the agreement should be approved with the provisions in question removed.

The Fair Work Commission approved the Ikon Installations (QLD) Pty Ltd (Queens Wharf Project) Union Collective Agreement 2018 with the provisions in question removed. The Commission noted that the agreement provided for fair and reasonable terms and conditions of employment and that the removal of the provisions did not undermine the effectiveness of the agreement. The decision highlights the importance of ensuring that collective agreements only contain provisions that are directly related to the terms and conditions of employment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established