Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 41

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2021/9157)

SPANOS VIC PTY LIMITED and the CFMEU (Victorian Construction and General Division) Subcontractors Waterproofing Enterprise Agreement 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 10 JANUARY 2022

Application for approval of the SPANOS VIC PTY LIMITED and the CFMEU (Victorian Construction and General Division) Subcontractors Waterproofing Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the SPANOS VIC PTY LIMITED and the CFMEU (Victorian Construction and General Division) Subcontractors Waterproofing 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 17 January 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 applicants in this case were the Construction, Forestry, Maritime, Mining and Energy Union, and SPANOS VIC PTY LIMITED, seeking approval for their Enterprise Agreement. The dispute reached the Fair Work Commission, which was required to determine whether the agreement complied with the relevant legislative framework. The primary concern was whether the agreement met the statutory requirements for enterprise agreements under the Fair Work Act 2009.

The legal issues before the Commission involved whether the agreement adhered to the provisions of the Fair Work Act, including its compliance with the 'better off overall test', and whether it appropriately addressed the terms and conditions of employment for the workers covered by the agreement. Furthermore, the Commission had to consider whether the agreement appropriately balanced the interests of both the employer and the employees, ensuring it was not contrary to public policy or the spirit of the Act.

The Commission examined the agreement in detail, considering the submissions and evidence presented by both parties. It concluded that the agreement did meet the statutory requirements and passed the 'better off overall test', ensuring that the employees would be no worse off and at least some would be better off financially. The agreement also appropriately balanced the interests of the employer and employees, and did not contravene any public policy considerations. Consequently, the Commission approved the Enterprise Agreement, finding it to be compliant with the Fair Work Act.

The Fair Work Commission approved the SPANOS VIC PTY LIMITED and the CFMEU (Victorian Construction and General Division) Subcontractors Waterproofing Enterprise Agreement 2020-2023, effective from the date of the decision.

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