Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 410

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/185)

PACQUOLA CORP PTY LTD T/As KPA CONCRETE CONSTRUCTION GROUP and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Placement Enterprise Agreement 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 9 FEBRUARY 2022

Application for approval of the PACQUOLA CORP PTY LTD T/As KPA CONCRETE CONSTRUCTION GROUP and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Placement Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the PACQUOLA CORP PTY LTD T/As KPA CONCRETE CONSTRUCTION GROUP and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Placement 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 16 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 matter before the Fair Work Commission involved an application for the approval of a Subcontractors Concrete Placement Enterprise Agreement between Pacquola Corporation Pty Ltd trading as KPA Concrete Construction Group and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute centred on whether the proposed agreement met the necessary requirements under the Fair Work Act 2009, particularly the provisions concerning genuine bargaining and the registration of new agreements. The case was heard and determined by the Fair Work Commission, the body tasked with overseeing workplace relations and ensuring compliance with the Fair Work Act.

The primary legal issues before the Commission were whether the agreement represented the outcome of genuine bargaining between the parties and whether it complied with the statutory requirements for registration. The Commission examined the bargaining process to ascertain if it was conducted in good faith and without coercion, and assessed the content of the agreement to ensure it met the minimum standards set out in the Fair Work Act. Additionally, the Commission had to consider the impact of the agreement on employees and its alignment with broader industrial and economic objectives.

The Fair Work Commission, after thorough examination, found that the bargaining process was conducted in accordance with the legal requirements. The Commission concluded that there was genuine bargaining, as evidenced by the negotiations and the willingness of both parties to reach a mutually acceptable agreement. The content of the agreement was also found to be compliant with the statutory minimum standards, providing adequate protections and entitlements for the employees. The Commission ultimately approved the registration of the agreement, recognising its validity and the parties' adherence to the legislative framework.

The Fair Work Commission approved the registration of the Subcontractors Concrete Placement Enterprise Agreement 2020-2023, affirming its compliance with the Fair Work Act and the legitimacy of the bargaining process. This decision underscores the importance of genuine bargaining and adherence to statutory requirements in the formation and approval of enterprise agreements.

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