Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 327

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/171)

OPT CIVIL 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, 3 FEBRUARY 2022

Application for approval of the OPT CIVIL 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 OPT CIVIL 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 10 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 the OPT Civil Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023. The application was heard in the Fair Work Commission, a tribunal in Australia responsible for the resolution of workplace disputes. The application for approval was made by the union on behalf of the employees and the employer. The nature of the dispute was the negotiation and formalisation of the terms and conditions of employment for formwork subcontractors within the specified industry and period.

The primary legal issue before the Commission was whether the proposed enterprise agreement met the statutory requirements for approval under the Fair Work Act 2009. This involved a consideration of whether the agreement provided for the terms and conditions of employment of the relevant employees, was genuinely negotiated, and complied with the provisions of the Act and relevant regulations. The Commission also needed to determine whether the agreement was in the best interests of the employees it covered.

In its reasoning, the Commission acknowledged the parties' efforts in negotiating the agreement and the comprehensive nature of the document. The Commission noted that the agreement contained provisions that covered various aspects of employment, including wages, hours of work, leave entitlements, and other conditions. The Commission found that the agreement was genuinely negotiated and that it complied with the statutory requirements. It was also satisfied that the agreement was in the best interests of the employees, taking into account the specific circumstances of the industry and the parties' bargaining positions. Based on these findings, the Commission approved the enterprise agreement. The final orders included the formal approval of the agreement, which would govern the employment terms and conditions for the specified period.

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