Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 636

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/332)

VICTORIAN RIGGING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS RIGGER/STEEL ERECTOR ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 23 FEBRUARY 2022

Application for approval of the VICTORIAN RIGGING 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 VICTORIAN RIGGING 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 2 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 parties involved in the dispute were the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Victorian Rigging Pty Ltd, with the Fair Work Commission (FWC) as the court. The crux of the matter was the application for the approval of the proposed Enterprise Agreement between the CFMEU and Victorian Rigging Pty Ltd, effective from 2020 to 2023. The CFMEU sought to have the agreement recognised as a registered agreement under the Fair Work Act 2009, while Victorian Rigging Pty Ltd opposed the approval due to concerns regarding the terms and conditions of the agreement.

The legal issues at the heart of this case revolved around the interpretation and application of the Fair Work Act 2009, specifically sections 230 and 231. These sections mandate that an enterprise agreement must be approved by the FWC if it meets certain criteria, including being in writing, free from prohibited content, and resolving any existing enterprise disputes. Moreover, the court had to examine the agreement's compliance with the "better-off-overall test" and whether it was likely to lead to improved conditions for employees without adversely affecting employers.

In its decision, the FWC thoroughly analysed the proposed agreement and found it to be compliant with the requirements of the Fair Work Act 2009. The court held that the agreement was free from prohibited content and that it met the better-off-overall test, as it provided employees with improved conditions without causing undue hardship to employers. The FWC further noted that the agreement had been negotiated in good faith and was in line with the principles of the Australian industrial relations system. Consequently, the FWC approved the proposed Enterprise Agreement, paving the way for its implementation between the parties.

In light of the FWC's decision, the proposed Enterprise Agreement between the CFMEU and Victorian Rigging Pty Ltd was approved and is now registered under the Fair Work Act 2009. The agreement will govern the employment conditions of the parties' employees for the duration of its validity, from 2020 to 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