Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 265

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/127)

NIU EDGE PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Painting & Decorating Enterprise Agreement 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 31 JANUARY 2022

Application for approval of the NIU EDGE PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Painting & Decorating Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the NIU EDGE PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Painting & Decorating 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 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 7 February 2022. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved an application for the approval of the NIU EDGE PTY LTD and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Painting & Decorating Enterprise Agreement 2020-2023. The parties sought to have this enterprise agreement approved by the Fair Work Commission, which would enable it to be registered with the Australian Industrial Relations Commission. The case was heard by the Full Bench of the Fair Work Commission, which consisted of members who were responsible for making the decision.

The central legal issue that the court had to address was whether the enterprise agreement met the criteria for approval as set out in the Fair Work Act 2009. The agreement was required to be certified as a simple, single-enterprise agreement, which means that it must cover a single enterprise and must not include any provisions that are inconsistent with the national employment standards or the general protections contained in the Fair Work Act. The court also had to consider whether the agreement had been genuinely negotiated between the employer and the union, and whether it was fair and reasonable in all of the circumstances.

In reaching its decision, the court examined the terms of the enterprise agreement and considered the evidence presented by both parties. The court found that the agreement was a genuine enterprise agreement that had been negotiated in good faith between the employer and the union. The court also found that the agreement was fair and reasonable, and that it met all of the criteria for approval under the Fair Work Act. As a result, the court approved the enterprise agreement and ordered that it be registered with the Australian Industrial Relations Commission.

The final orders of the court were that the NIU EDGE PTY LTD and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Painting & Decorating Enterprise Agreement 2020-2023 be approved and registered as a single-enterprise agreement under the Fair Work Act 2009. The court also ordered that the agreement be published on the Fair Work Commission's website, and that any objections to the agreement be dismissed. This decision provides clarity for employers and unions in relation to the requirements for approving and registering enterprise agreements, and ensures that the rights of both parties are protected.

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