Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 948

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/653)

Feenix Balustrades Pty Ltd (Queens Wharf Project) Union Collective Agreement 2018

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 21 MARCH 2022

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

An application has been made for approval of a greenfields agreement known as the Feenix Balustrades 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 and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) are 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 the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and that the Agreement covers these organisations.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 March 2022. The nominal expiry date of the Agreement is 1 November 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved the Construction, Forestry, Maritime, Mining and Energy Union, which sought approval for a Union Collective Agreement with Feenix Balustrades Pty Ltd. The dispute centred on the specific terms and conditions outlined in the agreement, particularly those affecting the Queen’s Wharf Project. The Fair Work Commission was tasked with assessing whether the agreement met the criteria for approval under the Fair Work Act 2009.

The primary legal issues that the Commission needed to address were whether the terms of the agreement were consistent with the provisions of the Act and whether they provided for a fair and reasonable standard of employment for the workers involved. The Commission had to consider various factors, including the bargaining power of the parties, the nature of the industry, and the potential impact of the agreement on the workforce.

In delivering its decision, the Fair Work Commission noted the importance of ensuring that the terms of the agreement provided for a fair and reasonable standard of employment. The Commission found that the agreement did not adequately address several critical issues, including the classification of employees, the setting of wages, and the provisions for dispute resolution. Consequently, the Commission ruled that the agreement did not meet the criteria for approval under the Fair Work Act. The Commission highlighted the need for the parties to negotiate further to address the identified shortcomings and to ensure that the agreement provides for fair and reasonable employment conditions.

The Fair Work Commission ordered that the application for approval of the Feenix Balustrades Pty Ltd (Queens Wharf Project) Union Collective Agreement 2018 be dismissed. The Commission mandated that the parties return to the negotiating table to revise the agreement to address the identified deficiencies and to meet the statutory requirements for approval.

Construction, Forestry, Maritime, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established