Construction, Forestry, Maritime, Mining and Energy Union

[2021] FWCA 7340

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/9016)

CRANMORE CARPENTRY PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CARPENTRY AND JOINERY ENTERPRISE AGREEMENT 2020-2023

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

Application for approval of the CRANMORE CARPENTRY PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023

[1] An application has been made for approval of an enterprise agreement known as the CRANMORE CARPENTRY PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery 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

The matter before the Fair Work Commission involved an application for the approval of the CRANMORE CARPENTRY PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023. The CRANMORE CARPENTRY PTY LTD is a small business that employs carpenters and joiners, while the CFMEU represents the interests of these employees. The dispute centred on whether the terms and conditions outlined in the proposed enterprise agreement complied with the relevant provisions of the Fair Work Act 2009. The commission had to determine if the agreement met the requirements for better-off, overall tests, and if the process for reaching the agreement was fair and reasonable.

The legal issues at hand primarily revolved around the compliance of the agreement with the Fair Work Act 2009, specifically focusing on the better-off, overall tests. Additionally, the commission had to examine whether the process for negotiating and finalising the agreement was procedurally fair and if the agreement contained terms that were appropriate and necessary for the operation of a small business. The commission also considered whether the agreement provided for a fair and reasonable process for resolving any future disputes between the parties.

In reaching its decision, the Fair Work Commission assessed the evidence presented by both parties regarding the negotiation process and the terms of the agreement. The commission found that the agreement was fair and reasonable, meeting the better-off, overall tests. It was determined that the process for reaching the agreement was fair and that the terms included were appropriate for the operation of the small business. The commission concluded that the agreement provided for a fair and reasonable process for resolving future disputes and approved the enterprise agreement.

The Fair Work Commission approved the CRANMORE CARPENTRY PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023, effective from 1 April 2020, and in force for a period of three years. The commission's decision was based on the finding that the agreement met the requirements of the Fair Work Act 2009 and provided for a fair and reasonable process for resolving future disputes between the parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established