Construction, Forestry, Mining & Energy, Industrial Union Of Employees, Queensland

[2022] FWCA 880

[2022] FWCA 880

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Construction, Forestry, Mining & Energy, Industrial Union Of Employees, Queensland

(AG2022/607)

Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland Administrative Employees Agreement 2022

Clerical industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 14 MARCH 2022

Application for approval of the Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland Administrative Employees Agreement 2022

1. The Construction, Forestry, Mining & Energy, Industrial Union Of Employees, Queensland (the Applicant/ Employer) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland Administrative Employees Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

1. I observe that clause 13.2 of the Agreement relating to Family Violence Leave may be inconsistent with the National Employment Standards (NES). I note that the Employer has given an Undertaking that the Agreement will be read and interpreted in conjunction with the NES and that where there is an inconsistency between a provision of the Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency. A copy of this undertaking is attached as Annexure A to this decision.

1. On this basis, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. I also note that by virtue of s. 55 of the Act, an enterprise agreement must not exclude the NES or any provisions of the NES and s. 56 provides that a term of an enterprise agreement has no effect to the extent that it contravenes s. 55.

1. I am also satisfied that the effect of accepting this Undertaking is not likely to cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement. Pursuant to subsection 190(3) of the Act, I accept the Undertaking. In accordance with s.201(3) of the Act, a copy of the undertaking will be attached to the Agreement and forms part of the Agreement.

1. I am satisfied, based on the information set out in the Form F16 Application for approval of an enterprise agreement, the Form F17 Employer declarations in support of an application for approval of the Agreement and responses to requests for further information provided by the Applicant, that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all the employees of the Applicant, however, considering s.186(3) and (3A), and on the basis of the information contained in the Form F17’s, I am satisfied that the ground of employees covered by the Agreement was fairly chosen.

1. The Agreement is approved in accordance with s.54 of the Act and will operate from 21 March 2022. The nominal expiry date of the Agreement is 31 December 2024.

DEPUTY PRESIDENT

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Annexure A