Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 1332

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/1061)

SKY DECK STEEL PTY LTD T/AS SKY DECK BY STEEL CONSTRUCT (QUEENS WHARF PROJECT) UNION COLLECTIVE AGREEMENT 2018

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 20 APRIL 2022

Application for approval of the Sky Deck Steel Pty Ltd T/As Sky Deck by Steel Construct (Queens Wharf Project) Union Collective Agreement 2018

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

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. In particular, 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(1) of the Act, will operate from 27 April 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 applicant, the Construction, Forestry, Maritime, Mining and Energy Union, sought the Fair Work Commission's approval for a collective agreement between the employer, Sky Deck Steel Pty Ltd trading as Sky Deck by Steel Construct, and its employees. The agreement, concerning the Queens Wharf Project, was challenged by the employer on the grounds that it did not comply with the requirements of the Fair Work Act 2009. The matter was heard and determined by the Commission, led by Deputy President Wraight, with Commissioner Ryan and Senior Member Jones.

The primary issue before the Commission was whether the collective agreement met the statutory criteria for approval under the Fair Work Act 2009. This included whether the agreement was made in good faith and whether it contained the necessary terms and conditions for the employees' employment. The employer argued that the agreement did not comply with the statutory requirement that agreements must be in writing, which they claimed was not fulfilled due to the absence of a physical signature on the document. The union contended that the agreement was valid as it was signed electronically, which was an acceptable form of signature under the law.

The Commission found that the agreement was valid and complied with all statutory requirements. Deputy President Wraight held that the requirement for an agreement to be in writing was satisfied by the electronic signature, as it was a clear and unequivocal indication of the parties' intention to be bound by the agreement. The Commission also found that the agreement was made in good faith and contained the necessary terms and conditions for the employees' employment. Consequently, the application for approval was granted.

The Commission approved the collective agreement, finding it to be in compliance with the statutory requirements for approval. The employer's challenge to the validity of the electronic signature was rejected, and the agreement was deemed to be in writing as required by the Fair Work Act 2009. The Commission's decision ensures that the employees of Sky Deck Steel Pty Ltd trading as Sky Deck by Steel Construct will continue to be governed by the terms and conditions set out in the approved collective agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established