Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 838

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/522)

O’TOOLE INDUSTRIES PTY LTD T/As O’TOOLE INDUSTRIES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Remedial Concrete and Access Flooring Enterprise Agreement 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 10 MARCH 2022

Application for approval of the O'TOOLE INDUSTRIES PTY LTD T/As O'TOOLE INDUSTRIES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Remedial Concrete and Access Flooring Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the O’TOOLE INDUSTRIES PTY LTD T/As O’TOOLE INDUSTRIES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Remedial Concrete and Access Flooring 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.

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.

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 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 17 March 2022. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application for the approval of an enterprise agreement. The applicant, O'Toole Industries Pty Ltd trading as O'Toole Industries Pty Ltd, sought the approval of the Subcontractors Remedial Concrete and Access Flooring Enterprise Agreement 2020-2023 with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) (Victorian Construction and General Division). The agreement in question was intended to regulate the terms and conditions of employment for subcontractors within the remedial concrete and access flooring industry.

The central legal issue before the Commission was whether the proposed enterprise agreement met all the necessary requirements under the Fair Work Act 2009, including but not limited to, the provisions concerning the procedural fairness, the genuine bargaining and the substantive fairness of the agreement. The Commission had to determine if the agreement was made in good faith and if it contained all the mandated terms and conditions. Additionally, the Commission assessed whether the agreement provided for a safety net of minimum terms and conditions, and whether it complied with the procedural requirements such as the provision of a copy of the agreement to the Fair Work Ombudsman and the parties involved.

In reaching its decision, the Commission considered the evidence presented by both parties and the relevant legislative framework. The Commission found that the agreement was genuinely bargained, as it was the result of negotiations between the parties, and that it included all the mandated terms and conditions. Furthermore, the agreement was deemed to provide a safety net of minimum terms and conditions for the employees. The Commission also concluded that the procedural fairness requirements were met, as the agreement was properly presented and all necessary steps were followed. Based on these findings, the Commission approved the agreement.

The Fair Work Commission approved the Subcontractors Remedial Concrete and Access Flooring Enterprise Agreement 2020-2023, finding it to be in compliance with all the requirements of the Fair Work Act 2009. This decision ensures that the terms and conditions of employment for subcontractors within the remedial concrete and access flooring industry are regulated by a legally binding agreement, providing both parties with a clear understanding of their respective rights and obligations.

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