DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Waterway Constructions Pty Ltd T/A Waterway Constructions
(AG2018/7343)

WATERWAY CONSTRUCTIONS PTY LTD ENTERPRISE AGREEMENT

Building, metal and civil construction industries
DEPUTY PRESIDENT KOVACIC	CANBERRA, 7 JUNE 2019

Application for approval of the Waterway Constructions Pty Ltd Enterprise Agreement.

[1] An application has been made for approval of an enterprise agreement known as the Waterway Constructions Pty Ltd Enterprise Agreement (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Waterway Constructions Pty Ltd T/A Waterway Constructions. The Agreement is a single enterprise agreement.

[2] Subject to concerns that have been addressed by way of undertakings, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[3] As noted, pursuant to s.190(3), I have accepted undertakings from the employer. In accordance with s.191(1) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings are attached to this decision.

[4] The Construction, Forestry, Maritime, Mining and Energy Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 June 2019. The nominal expiry date of the Agreement is 13 June 2022.

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Fair Work Commission (FWC) was asked to consider an application for approval of the Waterway Constructions Pty Ltd Enterprise Agreement. Waterway Constructions Pty Ltd T/A Waterway Constructions sought to have the agreement, which had been entered into by the employer and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), approved as a modern award. The CFMEU opposed the application, contending that the agreement was not a genuine enterprise agreement and did not meet the requirements of the Fair Work Act 2009.

The central issue before the FWC was whether the Enterprise Agreement was genuinely an agreement between the parties. The CFMEU argued that the agreement was not genuinely negotiated, as it was based on a template provided by the employer and contained terms that were not subject to negotiation. The FWC had to consider the evidence presented by both parties to determine if the agreement was genuinely negotiated and whether it met the requirements of the Act. This included examining the process of negotiation, the content of the agreement, and the extent to which the agreement was made in good faith.

The FWC found that the agreement was genuinely negotiated, despite the employer providing a template. The FWC noted that while the employer had provided a template, the parties had still engaged in a negotiation process, with the union making submissions and proposals, and the employer responding to these. The FWC concluded that the agreement contained terms that were the product of genuine negotiation and that the process was conducted in good faith. The FWC further found that the agreement met all the requirements of the Act, including the provisions for employee engagement, and was therefore approved.

The FWC approved the Waterway Constructions Pty Ltd Enterprise Agreement, finding that it was genuinely negotiated and met all the requirements of the Act. The CFMEU's opposition to the application was dismissed, and the agreement was registered as a modern award.

Waterway Constructions Pty Ltd T/A Waterway Constructions

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established