Construction, Forestry and Maritime Employees Union

[2024] FWCA 3678

[2024] FWCA 3678

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/3679)

CWS CONRINA WALL SYSTEMS PTY LTD / CFMEU COLLECTIVE AGREEMENT 2024-2027

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 23 OCTOBER 2024

Application for approval of the CWS Conrina Wall Systems Pty Ltd / CFMEU Collective Agreement 2024-2027

1. An application has been made for approval of an enterprise agreement known as the CWS Conrina Wall Systems Pty Ltd / CFMEU Collective 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.

1. 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 29 May 2024 and the Agreement was made on 5 September 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

1. 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.

1. 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.

1. The notice of employee representational rights (NERR) provided to employees was based on an old version of the NERR template. Additionally, the revised Form F17B indicated that the notification time was 29 May 2024. The Employer distributed the NERR on 13 June 2024, 15 days after the notification time rather than within 14 days of the notification time as required by s.173(3) of the Act. The Construction, Forestry and Maritime Employees Union submitted that employees were provided ample time to exercise their right to appoint an alternate bargaining representative, no employees exercised that right and the employees were represented throughout the bargaining by an experienced bargaining representative in the Construction, Forestry and Maritime Employees Union. It was further submitted that late distribution of the NERR was a minor procedural or technical error and that the employees were not likely to have been disadvantage by the error. 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], these issues constitute 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.

1. Correspondence was sent to the Employer and Construction, Forestry and Maritime Employees Union on 9 October 2024 raising a number of concerns including that it was unclear if the incorporated Award was provided to employees. The response from the Construction, Forestry and Maritime Employees Union provided that incorporated material was mistakenly not provided to employees, and in addressing this, the Construction, Forestry and Maritime Employees Union relied on the decision in Construction, Forestry, Maritime, Mining and Energy Union v AKN Pty Ltd t/a Aitkin Crane Services[2] where the Full Bench considered an agreement in which there had been partial incorporation of the modern awards, found that these were publicly available on a range of websites and that this was sufficient for the material to be readily available to employees. A revised Form F17B signed by the Employer was also provided with the response. Having regard to the Statement of Principles on Genuine Agreement and in particular clauses 4 to 7, I am satisfied in the circumstances the Agreement was genuinely agreed.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 October 2024. The nominal expiry date of the Agreement is 4 July 2027.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318.

[2] [2020] FWCFB 3438.

Printed by authority of the Commonwealth Government Printer

<AE526471  PR780498>