Construction, Forestry and Maritime Employees Union

[2024] FWCA 592

[2024] FWCA 592

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/139)

SKY ALUMINIUM FABRICATORS & GLAZIERS PTY. LTD. AND CFMEU – MANUFACTURING DIVISION ENTERPRISE AGREEMENT 2023

Building, metal and civil construction industries
COMMISSIONER MIRABELLA	MELBOURNE, 14 FEBRUARY 2024

Application for approval of the Sky Aluminium Fabricators & Glaziers Pty. Ltd. and CFMEU – Manufacturing Division Enterprise Agreement 2023.

1. The Construction, Forestry and Maritime Employees Union (the CFMEU) has made an application for approval of an enterprise agreement known as the Sky Aluminium Fabricators & Glaziers Pty. Ltd. and CFMEU– Manufacturing Division Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the FW Act). The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the FW Act, that commenced operation on 6 June 2023. The notification time for the Agreement was 4 December 2023 and the Agreement was made on 18 January 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

1. On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187 and 188, as are relevant to this application for approval, has been met.

1. Employees were provided with a notice of employee representational rights which was not in its prescribed form. Pursuant to s.188(5), I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural error made in relation to the requirement in s.174(1A). I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed to within the meaning of s.188(5) of the Act.

1. Section 188(1) of the FW Act requires the Commission to take into account the Statement of Principles on Genuine Agreement (Statement of Principles) made under s.188B in determining whether it is satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement. Paragraph 15 of the Statement of Principles provides that employees should be given a reasonable opportunity to vote on a proposed enterprise agreement in a free and informed manner, which includes using a voting process that ensures the vote of each employee is not disclosed to or ascertainable by an employer.

1. The Employer, Sky Aluminium Fabricators & Glaziers Pty Ltd, advised the Commission in the Form F17A declaration that the vote was conducted via a show of hands.

1. I have considered several matters, including but not limited to the number of employees who were eligible to vote and who voted, being five employees, and the views of the employee bargaining representative for the Agreement, the CFMEU, who lodged this application for approval of the Agreement and believes employees were able to vote in a free and informed manner. I am convinced that the Agreement has been genuinely agreed to within the meaning of s.186(2)(a) of the FW Act.

1. The CFMEU, 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) and based on the declaration provided by the organisation, I note that the Agreement covers the CFMEU.

1. The Agreement was approved on 14 February 2024 and, in accordance with s.54, will operate from 21 February 2024. The nominal expiry date of the Agreement is 30 March 2025.

COMMISSIONER

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