Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 581

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/308)

CWDS PTY LTD AS TRUSTEE FOR COOPER FAMILY TRUST T/AS COMMERCIAL WINDOW AND DOOR SOLUTIONS AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS ALUMINIUM & GLASS ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 21 FEBRUARY 2022

Application for approval of the CWDS PTY LTD AS TRUSTEE FOR COOPER FAMILY TRUST T/As COMMERCIAL WINDOW AND DOOR SOLUTIONS and the CFMEU (Victorian Construction and General Division) Subcontractors Aluminium & Glass Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the CWDS PTY LTD AS TRUSTEE FOR COOPER FAMILY TRUST T/As COMMERCIAL WINDOW AND DOOR SOLUTIONS and the CFMEU (Victorian Construction and General Division) Subcontractors Aluminium & Glass 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 28 February 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 case involved an application for approval of the CWDS PTY LTD AS TRUSTEE FOR COOPER FAMILY TRUST T/As COMMERCIAL WINDOW AND DOOR SOLUTIONS and the CFMEU (Victorian Construction and General Division) Subcontractors Aluminium & Glass Enterprise Agreement 2020-2023. The dispute arose in the Fair Work Commission, a tribunal established under the Fair Work Act 2009 to regulate industrial relations and workplace disputes. The matter was heard and determined by Commissioner J Daughton.

The legal issues at the heart of the case centred on whether the proposed enterprise agreement met the statutory criteria for approval under the Fair Work Act. Key concerns included the agreement's compliance with the Act's provisions regarding employee representation, the rights of non-unionised employees, and the process by which the agreement was negotiated and certified. The Commission had to assess whether the agreement provided fair and reasonable terms and conditions for employees and if it had been negotiated in good faith.

The Commission carefully examined the terms of the proposed agreement and the processes that led to its creation. Commissioner Daughton considered the evidence provided by both parties, including the negotiation history, the roles of the involved unions, and the views of the employees. The Commissioner concluded that the agreement was fair and reasonable and had been negotiated in good faith. The terms of the agreement were deemed to provide for fair and reasonable terms and conditions for employees, and the process leading to its certification was found to be compliant with the statutory requirements.

The final outcome was that the Fair Work Commission approved the CWDS PTY LTD AS TRUSTEE FOR COOPER FAMILY TRUST T/As COMMERCIAL WINDOW AND DOOR SOLUTIONS and the CFMEU (Victorian Construction and General Division) Subcontractors Aluminium & Glass Enterprise Agreement 2020-2023. The agreement was registered, and its terms became legally binding for the period specified. This decision ensures that the agreement will govern the employment conditions for the relevant employees during the agreed timeframe.

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