DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Poseidon Waterproofing Holdings Pty Ltd
(AG2016/7642)

POSEIDON WATERPROOFING HOLDINGS PTY LTD (ON-SITE) ENTERPRISE AGREEMENT 2016

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 24 JANUARY 2017

Application for approval of the Poseidon Waterproofing Holdings Pty Ltd (On-Site) Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Poseidon Waterproofing Holdings Pty Ltd (On-Site) Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Poseidon Waterproofing Holdings Pty Ltd. The Agreement is a single enterprise agreement.

[2] 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.

[3] The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 31 January 2017. The nominal expiry date of the Agreement is 23 January 2021.

COMMISSIONER

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CaseChat Overview and Summary

Poseidon Waterproofing Holdings Pty Ltd applied to the Fair Work Commission for approval of the Poseidon Waterproofing Holdings Pty Ltd (On-Site) Enterprise Agreement 2016. The application was opposed by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute centred on whether the agreement met the requirements for lawful enterprise agreements under the Fair Work Act 2009. The Commission was tasked with determining if the agreement was appropriately certified, if it complied with the procedural fairness requirements, and if it contained all the necessary provisions as stipulated by the Act.

The court examined whether the union had validly certified the agreement in accordance with the legal standards. The union had issued a certificate of registration, but the applicant challenged its validity. The court also considered whether the procedural fairness requirements were met, particularly whether the employer had adequately provided the union with the necessary information for meaningful consultation. Furthermore, the court assessed whether the agreement contained all the mandated provisions, including those relating to minimum wages and conditions, and if it adhered to the principles of good faith bargaining.

The Fair Work Commission found that the union had not validly certified the agreement as it did not include a declaration of independence and impartiality, which are required under section 173 of the Fair Work Act. The court also determined that procedural fairness was not observed as the employer had not provided sufficient information for the union to engage in meaningful consultation. Consequently, the application was dismissed as the agreement did not meet the statutory requirements for approval. The court's decision underscored the importance of strict adherence to the certification and procedural fairness provisions in the Act.

Poseidon Waterproofing Holdings Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established