Qube Heavy Lift Pty Ltd
[2025] FWCA 3109
•15 SEPTEMBER 2025
| [2025] FWCA 3109 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Qube Heavy Lift Pty Ltd
(AG2025/950)
QUBE HEAVY LIFT QLD PROJECTS ENTERPRISE AGREEMENT 2024
| Road transport industry | |
| DEPUTY PRESIDENT BUTLER | BRISBANE, 15 SEPTEMBER 2025 |
Application for approval of the Qube Heavy Lift Qld Projects Enterprise Agreement 2024.
Qube Heavy Lift Pty Ltd (“the Employer”) has applied for approval of an enterprise agreement known as Qube Heavy Lift Qld Projects Enterprise Agreement 2024 (“the Agreement”). The Application was made under section 185 of the Fair Work Act 2009 (“the Fair Work Act”). The Agreement is a single enterprise agreement.
Preliminary matters
On 15 April 2025 the Construction, Forestry and Maritime Employees Union (CFMEU) indicated it wished to be heard in this matter, and sought unredacted copies of the application, declaration and supporting materials.
The Application stated there were no union bargaining representatives for the Agreement. However, both the CFMEU and the Transport Workers' Union of Australia (TWU) filed declarations in relation to the Agreement, on 22 and 24 April respectively. The TWU also sought access to the Employer’s application, declaration, and supporting documents.
On 14 May my chambers wrote to the Employer and the two unions raising matters for their response, providing the TWU with the same redacted materials as had previously been provided to the CFMEU, and setting out my directions for submissions and any undertakings. My chambers also indicated that the CFMEU’s application for unredacted materials would be listed for mention.
In submissions to the Commission on 28 May 2025 the Employer maintained that the TWU and CFMEU were not bargaining representatives for the Agreement, and responded to the matters raised in the correspondence from my chambers of 14 May 2025.
The matter was brought on for mention on 30 May, and I issued further directions that day allowing the Employer to file submissions by 6 June 2025 in relation to whether the TWU and/or the CFMEU should be heard in the matter, and in relation to whether the unredacted materials should be provided.
On 5 June 2025 the Employer advised my chambers it had voluntarily provided the unredacted materials to the TWU and the CFMEU, and that it had no objection to their being heard on the application. My chambers subsequently invited the unions to respond to the correspondence of 14 May 2025, and the Employer’s submissions of 28 May 2025.
The unions subsequently provided submissions. The Employer responded. On 11 July 2025 my chambers advised all of them that as they remained in dispute the matter would be listed for further mention. The CFMEU and the Employer both provided draft directions and the mention was listed for 30 July.
On 28 July the TWU advised it no longer pressed any objections in relation to the Agreement and asked to be excused from the mention. Their request was granted and they did not attend. My chambers subsequently wrote to the TWU and indicated that I would take this as meaning that the TWU now accepts that it was not a bargaining representative for the Agreement, and invited the TWU to advise to the contrary, if that assumption was incorrect. My chambers did not receive any correspondence from the TWU contradicting the proposition put.
On the morning of 30 July the CFMEU wrote to my chambers asking that the mention be adjourned. I declined to grant the adjournment and my chambers indicated the mention would proceed as scheduled that day. At the mention I granted permission for the Employer to be legally represented, having heard from both the Employer and the CFMEU in that regard. I decided to issue directions for the Employer and the CFMEU to provide confidential lists so that I could deal with the question of whether the CFMEU was a bargaining representative for the Agreement. Those directions were issued that afternoon, with parties to respond by 1 August 2025.
On 1 August 2025 the CFMEU advised my chambers, the TWU, and the Employer, inter alia:
“3. However, after further enquiries we find that those CFMEU members, the employees, each appointed their own bargaining representatives.
4. By virtue of section 176(1)(c), employees could not properly appoint more than one bargaining representative.
5. Therefore, as a matter of fact the CFMEU was not and could not have been a bargaining representative.
6. The CFMEU advises that it no longer presses its objections with respect to the approval of the Agreement subject to the CFMEU being covered by the Agreement (F18) pursuant to s.183 of the Fair Work Act 2009.”
The CFMEU sought that this application be adjourned pending the outcome of proceedings in the court considering the construction of the CFMEU’s eligibility rules.
Both the CFMEU and the Employer provided lists as directed. On the basis of those lists I find that there were no members of the CFMEU who did not appoint themselves as bargaining representatives for the Agreement.
The Employer opposed the adjournment application, submitting that given it was not a bargaining representative the CFMEU could not ask to be covered by the Agreement, irrespective of its eligibility rules or the outcome of the separate proceedings in the Federal Court.
Notwithstanding their correspondence of 1 August 2025 the CFMEU wrote to my chambers on 12 August in, relevantly, the following terms:
The CFMEU does not accept that it was not a bargaining representative for the Agreement pursuant to section 183 of the Act. The authority, amongst many others, is Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Limited [2014] FWCFB 7940.
We wish to be heard on this matter, noting that the question of coverage is yet to be resolved in parallel proceedings in the FCA.
Hence, the CFMEU request for an adjournment of this FWC application.
All representatives and parties are copied into this email.
The CFMEU provided further correspondence on 14 August relevantly as follows:
Having returned to work today, to assist the Commission, and after speaking to the solicitor for QUBE, I can now write and provide the following information:
1. The relevant CFMEU member joined the union on 8 August 2019.
2. The decision of the Full Bench in Collinsville held that a union may be covered by an agreement if it was a bargaining agent, even if it was not a bargaining agent at the time the agreement was made: See Collinsville at [28]-[37].
3. The notification time for this enterprise Agreement was 22 April 2024 as per F17B.
4. CFMEU’s members appointed their own bargaining agents on several different dates subsequent to 22 April 2024.
5. As such, the CFMEU remained a default bargaining representative for those member(s) until they appointed an alternative bargaining representative.
6. Please see attached authority for s 183 of the Act that the CFMEU will rely upon at any hearing.
7. Please see attached authorities for the requested adjournment that the CFMEU will rely upon at any hearing.
On 2 September my chambers wrote to the bargaining representatives indicating the matter would be listed for hearing on 17 September with the remaining substantive issue to be whether the CFMEU is entitled to have the Agreement cover it. The correspondence set out arrangements for the applicant to file and serve materials by 9 September, and other bargaining representatives to do so by 12 September. In that correspondence, my chambers made the following requests of the bargaining representatives:
“It would assist the Commission if prior to the hearing the employer could file in the Commission, but not serve on the other bargaining representatives, an updated version of the table of employees previously provided, showing, for each, the date on which their appointment as a bargaining representative became effective.
In addition to any submissions the parties wish to make it would also assist if the applicant and CFMEU could be in a position to address the Commission at the hearing as to;
1. subject to the question of coverage, whether, if a CFMEU member appointed themselves as a bargaining representative at a date after the notification time, then the CFMEU was a bargaining representative for the Agreement and entitled to give notice under section 183 of the Fair Work Act; and
2. whether the Commission is required to decide the question of coverage before the Commission can determine this application; and
3. if so, whether the matter should be adjourned as contended by the CFMEU.
A notice of listing was duly issued for 17 September.
On 9 September the CFMEU wrote to my chambers and the bargaining representatives indicating it no longer wishes to be heard on this matter. The applicant responded by asserting that in light of the CFMEU’s email, the final remaining substantive issue in dispute had now been resolved. It asserted that the unions were not bargaining representatives and are therefore not entitled to be covered by the Agreement. It did not otherwise file materials in response to the email of 2 September 2025.
The CFMEU also did not file any materials in response to the email of 2 September by 12 September.
Having considered the material before me and the parties’ submissions, including those made in correspondence to my chambers, I do not consider that there is sufficient basis for a finding that the CFMEU is entitled to give notice under section 183 of the Fair Work Act.
I also do not consider that an adjournment should be granted, having considered the materials and submissions. The application for adjournment is dismissed. I now turn to the Agreement itself.
The National Employment Standards
Noting clause 1.4(c) of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards (“NES”) in the Fair Work Act will prevail where there is an inconsistency between the Agreement and the NES.
The Better Off Overall Test
In the correspondence of 14 May 2025 my chambers invited submissions on the following conditions, to assist me in considering the Better Off Overall Test (“BOOT”):
· Conditions for apprentices;
· Clause 6.6 of the Agreement, in respect of the finish time for afternoon shift; and
· Conditions for part-time workers.
The Employer has provided undertakings in relation to conditions for apprentices. In relation to afternoon shift, it submitted that the BOOT concern raised could arise only if a mobile crane employee was regularly rostered to commence work between 10:00am and 10:30am given that mobile crane employees are rostered to work for 8 hour shifts or more pursuant to cl. 14.1(b) of the Agreement. It submitted that this meant that if mobile crane employees start work at 10:31am, their shift will finish at 6:31pm and will qualify as Afternoon Shift under the Agreement. It submitted this was not a reasonably foreseeable pattern of work. I accept these submissions.
In response to an issue my chambers raised for the bargaining representatives’ consideration in relation to part-time employees covered by the Road Transport and Distribution Award 2020, the Employer has also provided an undertaking regarding overtime for part-time employees.
As to the Mobile Crane Hiring Award 2020 (“MCH Award”), the Employer submitted that though that Award does not contain a part-time employment clause, the Full Bench of the Commission has previously confirmed that the BOOT ought to be conducted against a casual employee engaged under the MCH Award, relying on Aitkin Crane Services [2015] FWCFB 1833. It submitted that part-time employees under the Agreement receive a higher rate of pay as casuals under the MCH Award, as well as receiving set hours of work and various other entitlements, such as leave, notice of termination and redundancy pay. I accept the Employer’s submissions in that regard.
Undertakings
The Employer has given written undertakings in accordance with section 190 of the Fair Work Act. The undertakings are attached as Annexure A to this decision. I am satisfied that each undertaking is not likely to cause financial detriment to any employee covered by the Agreement and does not result in substantial changes to the Agreement. Each undertaking is taken to be a term of the Agreement.
With the undertakings now given, and after having regard to the Statement of Principles on Genuine Agreement as well as the application and declarations filed in this matter, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 of the Fair Work Act, as are relevant to this application for approval, have been met.
No effective notices under section 183
As indicated above, both the TWU and the CFMEU lodged declarations. Each of the declarations stated the respective union had been a bargaining representative for the Agreement, and each gave notice under s.183 of the Fair Work Act that the union wanted to be covered by the Agreement. However, for the reasons set out above, I have not found that either of those unions is entitled to be covered by the Agreement.
Conclusion
The Agreement is approved and will operate in accordance with section 54 of the Fair Work Act. The nominal expiry date of the Agreement is 15 September 2029.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<AE530446 PR791759>
Annexure A
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