Construction, Forestry, Maritime, Mining and Energy Union

[2021] FWCA 7323

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/8949)

AJN GLASS & GLAZING PTY LIMITED AS TRUSTEE FOR THE AJN UNIT TRUST AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS ALUMINIUM & GLASS ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 24 DECEMBER 2021

Application for approval of the AJN GLASS & GLAZING PTY LIMITED AS TRUSTEE FOR THE AJN UNIT TRUST 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 AJN GLASS & GLAZING PTY LIMITED AS TRUSTEE FOR THE AJN UNIT TRUST 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 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 31 December 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

The applicant, AJN Glass & Glazing Pty Limited as Trustee for the AJN Unit Trust, along with the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division), sought approval of the Subcontractors Aluminium & Glass Enterprise Agreement 2020-2023. The application was heard by the Fair Work Commission, specifically a Deputy President. The central legal issue was whether the proposed agreement met the criteria set out in section 230 of the Fair Work Act 2009 for an enterprise agreement to be approved. This included assessing if the agreement provided for the terms and conditions of employment of the employees and did not have the purpose, or effect, of disadvantaging employees.

The Deputy President determined that the agreement did not meet the criteria for approval as it contained provisions that were contrary to the purpose of the Fair Work Act. Specifically, the agreement included a clause that purported to prevent employees from being members of a trade union, which contravened the protections under section 358 of the Act. Furthermore, the Deputy President found that the agreement's provisions on dispute resolution were not in accordance with the principles of procedural fairness and did not comply with section 228 of the Act. Consequently, the application for approval of the enterprise agreement was dismissed.

The Deputy President's decision was clear and based on a thorough examination of the agreement's provisions in relation to the statutory requirements. The Deputy President found that the inclusion of anti-union provisions and the inadequacy of the dispute resolution process were significant enough to warrant the dismissal of the application. As a result, the agreement was not approved and remains unenforceable under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established