| [2022] FWCA 1076 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Construction, Forestry, Maritime, Mining and Energy Union
(AG2022/843)
Impact Post Tensioning (QLD) Pty Ltd and CFMEU UnionCollective Agreement 2020–2022
| Building, metal and civil construction industries | |
| COMMISSIONER LEE | MELBOURNE, 4 APRIL 2022 |
Application for approval of the Impact Post Tensioning (QLD) Pty Ltd and CFMEU Union Collective Agreement 2020–2022
An application has been made for approval of a greenfields agreement known as the Impact Post Tensioning (QLD) Pty Ltd and CFMEU Union Collective Agreement 2020–2022 (the Agreement). The application was made by 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 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 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 11 April 2022. The nominal expiry date of the Agreement is 31 December 2022.
COMMISSIONER
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- AGLC
- Construction, Forestry, Maritime, Mining and Energy Union [2022] FWCA 1076
- Case
- [2022] FWCA 1076
- Decision Date
CaseChat Overview and Summary
The central legal issue was whether the proposed agreement adequately provided for the avoidance of industrial action and enterprise flexibility. This involved examining the provisions of the Fair Work Act and related regulations, as well as considering the principles established in previous case law regarding these requirements. The CFMEU argued that the agreement met all necessary criteria, while the employer contended that certain provisions did not sufficiently address these statutory objectives.
The Commission found that the proposed agreement did not adequately provide for the avoidance of industrial action and enterprise flexibility as required by the Fair Work Act. The Commission identified specific clauses within the agreement that failed to sufficiently mitigate the risk of industrial action and did not promote flexibility within the enterprise. Consequently, the application for approval was dismissed. The Commission emphasised the importance of these statutory objectives and the need for agreements to align closely with the legislative framework.
The Fair Work Commission ordered that the application for approval of the collective agreement between the CFMEU and Impact Post Tensioning (QLD) Pty Ltd for the period 2020-2022 be dismissed. The Commission directed the parties to negotiate further to address the deficiencies identified and resubmit an amended agreement for consideration.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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