Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 380

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/189)

GLADE CIVIL (AUST) PTY LTD AS TRUSTEE FOR GLADE CIVIL (AUST) TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 8 FEBRUARY 2022

Application for approval of the GLADE CIVIL (AUST) PTY LTD AS TRUSTEE FOR GLADE CIVIL (AUST) TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the GLADE CIVIL (AUST) PTY LTD AS TRUSTEE FOR GLADE CIVIL (AUST) TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage 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 15 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 parties in this case were GLADE CIVIL (AUST) PTY LTD AS TRUSTEE FOR GLADE CIVIL (AUST) TRUST and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute centred around the application for approval of the GLADE CIVIL (AUST) TRUSTEE FOR GLADE CIVIL (AUST) TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The case was heard in the Fair Work Commission, an Australian government body responsible for the resolution of employment-related disputes.

The primary legal issue the court had to resolve was whether the enterprise agreement in question complied with the relevant statutory provisions. Specifically, the court needed to determine if the agreement met the criteria set out in the Fair Work Act 2009, including whether it provided for a fair and equitable outcome for all parties involved. The court also needed to consider whether the agreement adhered to the procedural requirements for its approval, such as the proper notification of relevant parties and the opportunity for consultation.

The Fair Work Commission found that the agreement did indeed comply with the statutory requirements. The court was satisfied that the agreement provided for a fair and equitable outcome for both employers and employees, taking into account the specific circumstances of the industry and the parties involved. The commission also concluded that the agreement had been properly negotiated and that the necessary consultation processes had been followed. As a result, the application for approval of the enterprise agreement was granted.

The Fair Work Commission ordered that the GLADE CIVIL (AUST) TRUSTEE FOR GLADE CIVIL (AUST) TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023 be approved and registered. The agreement would now be in effect from the date of the decision, providing a legally binding framework for the employment relationship between the parties for the duration of the agreement.

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