Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 859

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/540)

CENTRAL ASPHALT GROUP PTY LTD AS TRUSTEE FOR THE DAVID SPERANZA FAMILY TRUST T/As CENTRAL ASPHALT AND PROFILING and the CFMEU (Victorian Construction and General Division) Subcontractors Asphalt Enterprise Agreement 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 15 MARCH 2022

Application for approval of the CENTRAL ASPHALT GROUP PTY LTD AS TRUSTEE FOR THE DAVID SPERANZA FAMILY TRUST T/As CENTRAL ASPHALT AND PROFILING and the CFMEU (Victorian Construction and General Division) Subcontractors Asphalt Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the CENTRAL ASPHALT GROUP PTY LTD AS TRUSTEE FOR THE DAVID SPERANZA FAMILY TRUST T/As CENTRAL ASPHALT AND PROFILING and the CFMEU (Victorian Construction and General Division) Subcontractors Asphalt 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 the Construction, Forestry, Maritime, Mining and Energy Union. The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

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.
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.

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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 March 2022. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Annexure A

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the court involved an application for the approval of an enterprise agreement between the Central Asphalt Group Pty Ltd as trustee for the David Speranza Family Trust trading as Central Asphalt and Profiling, and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors. The dispute centred on whether the proposed agreement met the legal requirements for approval under the Fair Work Act 2009. The matter was heard in the Fair Work Commission.

The central legal issue for the court to decide was whether the agreement contained in the application complied with the provisions of the Fair Work Act, particularly sections relating to the mandatory requirements for enterprise agreements, including the need for the agreement to provide for a fair and efficient workplace relationship. The court had to consider whether the agreement provided adequate protections for employees, including provisions for pay rates, hours of work, and other terms and conditions of employment.

The court, after reviewing the agreement and considering the submissions from both parties, found that the proposed agreement did comply with the statutory requirements. It was noted that the agreement included provisions for pay rates and conditions that were fair and efficient, and that it provided sufficient protections for employees. The court was satisfied that the agreement met all necessary criteria for approval, including the requirement that it facilitate a positive and productive workplace relationship. Consequently, the court approved the agreement.

The final orders of the court were that the agreement, as proposed, was approved in accordance with the provisions of the Fair Work Act 2009. The court's approval signified that the agreement could now be registered and would become binding on the parties from the date of the decision.

Construction, Forestry, Maritime, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established