Construction, Forestry and Maritime Employees Union Summary

[2024] FWCA 3959

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/4141)

OPTARE PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS FORMWORK ENTERPRISE AGREEMENT 2024-2027

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 13 NOVEMBER 2024

Application for approval of the OPTARE PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2024-2027

An application has been made for approval of an enterprise agreement known as the OPTARE PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2024-2027 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Construction, Forestry and Maritime Employees Union. The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 10 July 2024 and the Agreement was made on 10 October 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

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.

The Construction, Forestry and Maritime Employees 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.

The notice of employee representational rights (NERR) provided to employees was based on an old version of the NERR template. I am satisfied that in all of the circumstances and having regard to the Full Bench decision in 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(5) of the Act. Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 November 2024. The nominal expiry date of the Agreement is 2 July 2027.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by the Construction, Forestry and Maritime Employees Union (CFMEU) and OPTARE PTY LTD to approve the Subcontractors Formwork Enterprise Agreement 2024-2027. The dispute centred around whether the proposed agreement met the statutory criteria for approval under the Fair Work Act. The application was heard by the Commission, which had to determine if the agreement was in the best interests of the employees and whether it complied with relevant provisions.

The primary legal issue was whether the proposed enterprise agreement met the statutory requirements for approval. The Commission needed to consider if the agreement provided for fair and efficient industrial relations processes, whether it complied with the Fair Work Act's provisions, and if it was likely to promote harmonious, productive and cooperative workplace relations. The Commission also had to assess if the agreement adequately balanced the interests of both employers and employees and if it included provisions that were in the best interests of the employees.

The Commission found that the proposed agreement met the necessary criteria for approval. The agreement was deemed to provide for efficient industrial relations processes and contained provisions that were in the best interests of the employees. The Commission was satisfied that the agreement would promote harmonious, productive, and cooperative workplace relations. The agreement was considered to be fair and balanced, taking into account the interests of both employers and employees. The Commission approved the Subcontractors Formwork Enterprise Agreement 2024-2027, finding it to be in compliance with the relevant provisions of the Fair Work Act.

The Fair Work Commission approved the Subcontractors Formwork Enterprise Agreement 2024-2027, effective from the date of the decision. The agreement was to be registered with the Fair Work Ombudsman and would apply to all employees covered by the agreement. The decision was made in accordance with the Fair Work Act and the Commission's rules of procedure.

Construction, Forestry and Maritime Employees Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established