Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 748

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/442)

NEMO CARPENTRY SERVICES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023

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

Application for approval of the NEMO CARPENTRY SERVICES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the NEMO CARPENTRY SERVICES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery 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 involved an application for the approval of the NEMO Carpentry Services Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023. The applicant was NEMO Carpentry Services Pty Ltd, and the respondent was the CFMEU (Victorian Construction and General Division). The application was brought before the Fair Work Commission, a body with jurisdiction over industrial relations matters in Australia.

The legal issues the court needed to address were whether the proposed enterprise agreement complied with the requirements of the Fair Work Act 2009 and the Fair Work (Registered Organisations) Act 2009. Specifically, the court had to determine if the agreement met the "better off overall test" and if it was free from prohibited content. The better off overall test requires that the terms of the agreement must not be worse for the employees than the applicable award or other relevant industrial instrument, and that at least half of the employees must be better off overall. The court also had to ensure that the agreement did not contain any terms that were contrary to public policy or prohibited by the legislation.

The court found that the agreement satisfied the better off overall test, as it improved conditions for the employees, particularly in terms of pay rates and leave entitlements. The court was satisfied that at least half of the employees would be better off overall, and no employees would be worse off. The agreement also did not contain any prohibited content, as it did not contravene any relevant laws or public policy considerations. The court concluded that the agreement met all the necessary legal requirements and approved it.

The final orders of the court were that the NEMO Carpentry Services Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023 be approved as a registered agreement under the Fair Work Act 2009. The agreement was to come into effect on the date of the approval and would remain in force until the end of the specified period, unless terminated earlier in accordance with the terms of the agreement or the Fair Work Act.

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