Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 769

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/439)

ELK STEEL WORKS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORSRIGGER/STEEL ERECTOR ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 3 MARCH 2022

Application for approval of the ELK STEEL WORKS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the ELK STEEL WORKS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector 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 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 10 March 2022. The nominal expiry date of the Agreement is 30 June 2023.

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 for the approval of an enterprise agreement between Elk Steel Works Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The proposed agreement, titled the ELK STEEL WORKS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector Enterprise Agreement 2020-2023, sought to establish terms and conditions of employment for subcontractors who are riggers and steel erectors within Elk Steel Works. The commission's role was to determine whether the agreement met the legal requirements under the Fair Work Act 2009, including ensuring that it was free from prohibited content and that it had been fairly negotiated.

The key legal issues addressed by the commission included whether the agreement contained any terms that were prohibited by the Fair Work Act, and whether the agreement was made in accordance with the procedural requirements for enterprise agreements. Specifically, the commission needed to verify that the agreement had been fairly negotiated, and that it included the minimum terms and conditions as prescribed by the Act. The commission also needed to consider whether the agreement adequately protected the rights of the employees and provided a fair framework for their employment conditions.

In reaching its decision, the Fair Work Commission examined the contents of the proposed agreement in detail. The commission confirmed that the agreement did not include any terms that were prohibited under the Fair Work Act. It also found that the agreement had been fairly negotiated and included all the prescribed minimum terms and conditions. The commission was satisfied that the agreement provided a fair and effective framework for the employment of subcontractors within Elk Steel Works, protecting their rights and ensuring that it complied with all legal requirements.

As a result of its findings, the Fair Work Commission approved the ELK STEEL WORKS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector Enterprise Agreement 2020-2023. The agreement was deemed to be compliant with the Fair Work Act and was authorised to take effect from the date of the commission's decision. This approval meant that the terms and conditions set out in the agreement would govern the employment of the relevant subcontractors during the specified period of 2020-2023.

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