Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 561

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/283)

R & R GROUP (VIC) PTY LTD AS TRUSTEE FOR THE CLANCY FACADES TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Cladding Installation Enterprise Agreement 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 18 FEBRUARY 2022

Application for approval of the R & R GROUP (VIC) PTY LTD AS TRUSTEE FOR THE CLANCY FACADES TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Cladding Installation Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the R & R GROUP (VIC) PTY LTD AS TRUSTEE FOR THE CLANCY FACADES TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Cladding Installation 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 25 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 the approval of a Subcontractors Cladding Installation Enterprise Agreement between the R & R GROUP (VIC) PTY LTD as trustee for the Clancy Facades Trust and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The application was heard by the Fair Work Commission (FWC), the body responsible for the approval of such agreements in Australia. The dispute centred around the terms and conditions of the proposed enterprise agreement and whether it met the legal requirements under the Fair Work Act 2009.

The primary legal issues before the FWC were whether the proposed agreement was a "good faith" bargaining outcome, whether it met the "better off overall test" (BOOT), and whether it contained appropriate dispute resolution provisions. The FWC had to determine if the agreement was negotiated in good faith, if the parties had genuinely sought to reach an agreement, and if the agreement provided employees with a better overall outcome than the existing award or agreement. Additionally, the FWC needed to ensure that the agreement contained suitable provisions for the resolution of disputes that might arise under the agreement.

The FWC found that the proposed agreement was the product of good faith bargaining, as both parties had genuinely sought to reach an agreement that was fair and reasonable. The FWC determined that the agreement met the better off overall test, as it provided employees with improvements in wages, conditions, and other benefits that outweighed any disadvantages. The FWC also found that the agreement contained appropriate dispute resolution provisions, which would facilitate the fair and efficient resolution of any disputes that might arise. Therefore, the FWC approved the proposed enterprise agreement.

The final orders of the FWC were that the Subcontractors Cladding Installation Enterprise Agreement 2020-2023 between the R & R GROUP (VIC) PTY LTD as trustee for the Clancy Facades Trust and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) be approved and registered under the Fair Work Act 2009. The agreement would now govern the employment conditions of the relevant employees and would be in effect from the date of the FWC's approval.

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