Construction, Forestry, Maritime, Mining and Energy Union

[2021] FWCA 7349

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/9030)

STANDARD ACCESS COMMERCIAL PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS MAST CLIMBING ACCESS EQUIPMENT ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 30 DECEMBER 2021

Application for approval of the STANDARD ACCESS COMMERCIAL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Mast Climbing Access Equipment Enterprise Agreement 2020-2023

[1] An application has been made for approval of an enterprise agreement known as the STANDARD ACCESS COMMERCIAL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Mast Climbing Access Equipment 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 6 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

In the matter of the Fair Work Commission, Standard Access Commercial Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors submitted an application for the approval of their enterprise agreement. The agreement, titled the Standard Access Commercial Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Mast Climbing Access Equipment Enterprise Agreement 2020-2023, was contested on various grounds. The court was tasked with determining whether the agreement met the necessary legal criteria for approval under the Fair Work Act 2009.

The primary legal issues revolved around whether the agreement complied with the procedural and substantive requirements set forth by the Fair Work Act. The court had to consider whether the agreement was fairly negotiated and whether it contained the necessary minimum terms and conditions. Additionally, the court examined whether the agreement unfairly disadvantaged any employees or whether it contained provisions that were contrary to public policy.

The court found that the application for approval was validly made and that the agreement had been fairly negotiated between the parties. The agreement was deemed to meet all procedural requirements, including proper notice and consultation processes. Regarding the substantive criteria, the court concluded that the agreement provided for minimum terms and conditions and did not unfairly disadvantage any employees. It was also found that the agreement did not contravene any public policy. Based on these findings, the court approved the enterprise agreement.

The Fair Work Commission granted the application for approval of the Standard Access Commercial Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Mast Climbing Access Equipment Enterprise Agreement 2020-2023, effective from the date of the decision. This approval ensures that the terms and conditions set out in the agreement will apply to the relevant employees and employers.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established