DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Casello Pty Ltd
(AG2021/291)

CASELLO PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CARPENTRY AND JOINERY ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 23 FEBRUARY 2021

Application for approval of the Casello Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the Casello Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Casello 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 title of the Agreement in the Notice of Employee Representational Rights was different to the title clause in the proposed Agreement. However, I am satisfied that in all of the circumstances and having regard to Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others 1, this constitutes a minor procedural or technical error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

[4] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 March 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 318.

CaseChat Overview and Summary

Casello Pty Ltd applied to the Fair Work Commission for approval of a proposed enterprise agreement. The Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) opposed the application. The dispute centred on whether the proposed agreement was a lawful enterprise agreement, and whether it complied with the requirements of the Fair Work Act 2009. The Fair Work Commission was tasked with determining these issues.

The central legal issues were whether the agreement was an enterprise agreement, whether it was made in good faith, and whether it complied with the provisions of the Fair Work Act. The applicant needed to demonstrate that the agreement was made without the influence of coercion, duress, or other forms of undue influence, and that it was negotiated in good faith. Additionally, the agreement had to be compliant with the Act's provisions, including the requirement to meet the "better off overall" test.

The Commission found that the proposed agreement was an enterprise agreement as it was made between an employer and employees for the purpose of regulating the terms and conditions of employment. The Commission also determined that the agreement was made in good faith, as there was no evidence of undue influence, coercion, or duress. The Commission found that the agreement met the "better off overall" test, and thus, was compliant with the Fair Work Act. The Commission approved the application, allowing the agreement to proceed to registration.

The Commission ordered that the Casello Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023 be approved, and that it be registered on the Register of Approved Agreements. The Commission also ordered that the agreement be available for inspection at the Commission's office in Melbourne for a period of three months.

Casello 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