Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 284

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/146)

VERTICAL FACADE SYSTEMS PTY LTD AS TRUSTEE FOR VERTICAL FACADE SYSTEMS TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Aluminium & Glass Enterprise Agreement 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 1 FEBRUARY 2022

Application for approval of the VERTICAL FACADE SYSTEMS PTY LTD AS TRUSTEE FOR VERTICAL FACADE SYSTEMS TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Aluminium & Glass Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the VERTICAL FACADE SYSTEMS PTY LTD AS TRUSTEE FOR VERTICAL FACADE SYSTEMS TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Aluminium & Glass 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 8 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 to the case were Vertical Facade Systems Pty Ltd, acting as trustee for the Vertical Facade Systems Trust, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute involved the application for approval of the Vertical Facade Systems Trust and CFMEU (Victorian Construction and General Division) Subcontractors Aluminium & Glass Enterprise Agreement 2020-2023. The case was heard in the Fair Work Commission, which is responsible for regulating enterprise agreements under Australian labour law.

The primary legal issue before the Commission was whether the proposed enterprise agreement met the criteria for approval as set out in the Fair Work Act 2009. Specifically, the Commission had to determine whether the agreement provided for fair and reasonable terms and conditions for the employees covered by the agreement, and whether it complied with procedural requirements. The Commission also needed to assess whether the agreement included appropriate provisions for employee representation and dispute resolution.

In delivering its decision, the Commission noted that the proposed agreement had been negotiated in good faith and included a range of protections for employees, including provisions for minimum wages and conditions, dispute resolution mechanisms, and provisions for employee representation. The Commission found that the agreement provided for fair and reasonable terms and conditions for the employees covered by it, and that it complied with procedural requirements. The Commission also noted that the agreement included appropriate provisions for employee representation and dispute resolution.

Accordingly, the Commission approved the proposed enterprise agreement, subject to certain minor modifications. The final orders of the Commission included approval of the agreement with the modifications and a direction that the agreement be registered with the Fair Work Commission.

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