Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 723

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/406)

ALOHA POOLS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) BUILDER ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 1 MARCH 2022

Application for approval of the ALOHA POOLS PTY LTD and the CFMEU (Victorian Construction and General Division) Builder Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the ALOHA POOLS PTY LTD and the CFMEU (Victorian Construction and General Division) Builder 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.

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 8 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 approval of the ALOHA POOLS PTY LTD and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Builder Enterprise Agreement 2020-2023. The application was brought before the Fair Work Commission, an Australian federal statutory body with jurisdiction over workplace relations and industrial matters. The primary dispute centred on whether the terms of the enterprise agreement met the legal requirements for approval under the Fair Work Act 2009. Specifically, the agreement's provisions regarding wage rates, working conditions, and other employment terms were scrutinized to determine if they complied with the statutory criteria for being deemed fair and reasonable.

The court was tasked with examining whether the agreement adhered to the provisions of the Fair Work Act, particularly in relation to the 'better off overall test', which requires that employees under the agreement be no worse off financially and, in some cases, better off overall compared to the applicable national award or registered agreement. Additionally, the court had to assess whether the agreement was negotiated in good faith and whether it complied with other statutory requirements, including the 'in good faith' test. This involved an in-depth review of the negotiation process and the fairness of the agreement's terms.

In delivering its decision, the Fair Work Commission determined that the agreement met the necessary statutory criteria for approval. The commission found that the agreement was negotiated in good faith and that it provided for employees to be no worse off overall, with some employees being better off overall. The terms of the agreement were deemed to be fair and reasonable, and the commission was satisfied that it complied with all relevant provisions of the Fair Work Act. As a result, the application for approval of the ALOHA POOLS PTY LTD and the CFMEU (Victorian Construction and General Division) Builder Enterprise Agreement 2020-2023 was approved. The court emphasized the importance of ensuring that such agreements support fair and reasonable terms of employment while balancing the interests of both employers and employees.

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