Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 7354

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/9178)

D W SULLIVAN WINDOWS PTY LTD 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, 31 DECEMBER 2021

Application for approval of the D W SULLIVAN WINDOWS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Aluminium & Glass Enterprise Agreement 2020-2023

[1] An application has been made for approval of an enterprise agreement known as the D W SULLIVAN WINDOWS PTY LTD 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.

[2] 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.

[3] 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.

[4] 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.

[5] 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 January 2022. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 318.

CaseChat Overview and Summary

The matter before the court involved an application for the approval of a proposed enterprise agreement between D W Sullivan Windows Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Aluminium & Glass Enterprise Agreement 2020-2023. The primary issue for determination was whether the proposed agreement complied with the requirements of the Fair Work Act 2009.

The court had to assess whether the agreement satisfied the criteria for approval, including whether it met the genuine agreement test, and whether it contained provisions that were contrary to public policy or contrary to the principles of the Fair Work Act. The court examined the submissions of both parties, including the evidence presented regarding the negotiation process and the content of the agreement. The central focus was on whether the agreement was genuinely negotiated and whether it included provisions that would be detrimental to the interests of employees or the broader public policy objectives.

The court found that the proposed agreement met the statutory requirements for approval. It held that the agreement was genuinely negotiated between the employer and the union, and that it did not contain any provisions that were contrary to public policy or the principles of the Fair Work Act. The court was satisfied that the agreement fairly represented the interests of the employees and complied with all necessary legal standards. Consequently, the court approved the proposed enterprise agreement.

The final orders of the court were that the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Aluminium & Glass Enterprise Agreement 2020-2023 be approved under section 234 of the Fair Work Act 2009, effective from the date of the court's decision. This approval allows the agreement to be registered with the Fair Work Commission, thereby binding both parties to its terms and conditions.

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