Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 527

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/258)

BC FORM UP PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 16 FEBRUARY 2022

Application for approval of the BC FORM UP PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the BC FORM UP PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork 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 23 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

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) applied for the approval of the BC FORM UP PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023. The applicant, the CFMEU, is an industrial union representing employees in various industries. The respondent, BC FORM UP PTY LTD, is a company engaged in formwork services. The dispute revolves around the terms and conditions of employment for formwork subcontractors within the specified period.

The primary legal issue before the Commission was whether the proposed enterprise agreement met the requirements of the Fair Work Act 2009, including compliance with the better off overall test (BOOT). The Commission had to assess if the agreement would provide employees with a minimum total remuneration package that was at least as good as their existing terms and conditions or any other relevant agreement. Additionally, the Commission examined whether the agreement contained any provisions that were contrary to the Fair Work Act or any other relevant legislation.

The Commission found that the proposed agreement was compliant with the BOOT test, ensuring that the employees would be at least as well off under the new agreement as they would be under their existing terms. The Commission considered the wage increases, penalty rates, and other benefits provided in the agreement, determining that it met the necessary legislative requirements. The Commission also reviewed the agreement's provisions and found no issues that would render the agreement contrary to the Fair Work Act or any other relevant legislation. Based on these findings, the Commission approved the BC FORM UP PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023.

The Commission's final orders were to approve the enterprise agreement, which would be registered and in effect from the date of the decision. The agreement would apply to all employees covered by the agreement, and the terms and conditions set out in the agreement would govern their employment relationship with BC FORM UP PTY LTD. The approval of the agreement ensures that the employees would receive the benefits outlined in the agreement, while the employer would be bound by the terms and conditions specified within the approved document.

Construction, Forestry, Maritime, Mining and Energy Union

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

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Legal Principle Established