Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 7338

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/9017)

AIKON INTERIOR PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS PLASTERING ENTERPRISE AGREEMENT 2020-2023

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

Application for approval of the AIKON INTERIOR PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Plastering Enterprise Agreement 2020-2023

[1] An application has been made for approval of an enterprise agreement known as the AIKON INTERIOR PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Plastering 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 recent decision, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought approval of the AIKON INTERIOR PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Plastering Enterprise Agreement 2020-2023. The primary dispute centred around whether the agreement met the necessary legal standards for approval under the Fair Work Act 2009. The Fair Work Commission, which has the authority to approve enterprise agreements that meet certain criteria, was tasked with this decision.

The legal issues before the Commission included whether the agreement was genuinely an enterprise agreement, if it was appropriately certified, and if it complied with all the procedural and substantive requirements set forth in the Fair Work Act. Additionally, the Commission had to consider whether the agreement provided adequate protections for employees and whether it balanced the interests of employers and employees fairly.

In its reasoning, the Commission examined the certification process and found that the agreement was indeed a genuine enterprise agreement, duly certified by the appropriate authorities. It also determined that the agreement satisfied all procedural requirements and met the substantive criteria for approval, including provisions that ensured fair treatment of employees and a reasonable balance of interests between employers and employees. The Commission concluded that the agreement was consistent with the overarching objectives of the Fair Work Act and approved it accordingly.

The final orders included the approval of the AIKON INTERIOR PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Plastering Enterprise Agreement 2020-2023, effective from the date of the decision. This outcome provides clarity and legal certainty for the parties involved, ensuring that the agreement will govern the terms of employment for the specified period, subject to the Fair Work Act.

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