Construction, Forestry and Maritime Employees Union

[2024] FWCA 3479

[2024] FWCA 3479

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/2578)

FDC / CFMEU COLLECTIVE AGREEMENT 2024-2027

Building, metal and civil construction industries
DEPUTY PRESIDENT BELL	MELBOURNE, 10 OCTOBER 2024

Application for approval of the FDC / CFMEU Collective Agreement 2024-2027

1. An application has been made for approval of an enterprise agreement known as the FDC / CFMEU Collective Agreement 2024-2027 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the Construction, Forestry and Maritime Employees Union (CFMEU). The Agreement is a single enterprise agreement.

1. The notification time for the Agreement under s.173(2) was 10 May 2024 and the Agreement was made on 1 July 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.[1]

1. Having regard to the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in sections 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

1. The Notice of Employee Representational Rights (NOERR) was not in the prescribed form, as the pre-reform version has been used. Nevertheless, in the circumstances, I am satisfied that this constitutes a minor procedural or technical error for the purposes of s.188(5) of the Act. Further, 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 within the meaning of s.188 of the Act.

1. In addition to the above, there were minor procedural or technical errors regarding the provision of incorporated documents, notification of the method of vote, and the identity of the correct employer, which were raised in correspondence issued by the Commission to the CFMEU and for which satisfactory explanations and responses have been provided. I am satisfied that these issues constitute minor procedural or technical errors for the purposes of s.188(5) of the 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) I note that the Agreement covers the organisation.

1. The Agreement was approved on 10 October 2024 and, in accordance with s.54, will operate from 17 October 2024. The nominal expiry date of the Agreement is 4 July 2027.

Variation

1. Clarification was sought from the parties as the Form F16 filed with the Application indicated one employer was covered by the Agreement but the Form F17B listed three different employers being FDC Business Services Pty Ltd, FDC Construction (NSW) Pty Limited and FDC Fitout & Refurbishment (NSW) Pty Limited. Clause 2 of the Agreement also made reference to these three employers.

1. On 29 August 2024, the CFMEU provided a response which indicated neither FDC Construction (NSW) Pty Limited or FDC Fitout & Refurbishment (NSW) Pty Limited employed any employees who will be covered by the Agreement. The CFMEU submitted that the Commission can be satisfied that employees of FDC Business Services Pty Ltd have been asked to approve the agreement under s.181(1), and the majority of those employees who cast a valid vote, approved the agreement under s.182. The CFMEU requested that the Fair Work Commission exercise its discretion under s.586(a) of the Act, to remove references to FDC Construction (NSW) Pty Limited and FDC Fitout & Refurbishment (NSW) Pty Limited in the Agreement and the Form F17B.

1. I am satisfied the reference to FDC Construction (NSW) Pty Limited or FDC Fitout & Refurbishment (NSW) Pty Limited in clause 2 of the Agreement is an obvious error and should be corrected. While the CFMEU requested the amendments to be made under s.586(a), I consider the more appropriate basis for amendment is s.218A. The errors will be amended as per the order below.

Order

1. I order, pursuant to s.218A of the Act, that the Agreement be varied to correct an obvious error as follows:

1. By removing references to FDC Construction (NSW) Pty Limited and FDC Fitout & Refurbishment (NSW) Pty Limited at clause 2 of the Agreement.

1. The variation will operate from 10 October 2024.

DEPUTY PRESIDENT

[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 Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements which are not applicable to the present application.

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