Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 7284

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/8907)

EXAR (VIC) 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, 23 DECEMBER 2021

Application for approval of the EXAR (VIC) 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 EXAR (VIC) 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 30 December 2021. 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 Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union, represented by its Victorian Construction and General Division, and EXAR (VIC) PTY LTD, a small business engaged in the construction industry, applied for the approval of a Subcontractors Carpentry and Joinery Enterprise Agreement. The union sought to have the agreement registered under the Fair Work Act 2009 to ensure that its terms would be enforceable as a legally binding contract between the parties. The application involved a detailed examination of the agreement's provisions to determine whether it met the requirements for approval as a simple, streamlined, and clear enterprise agreement.

The primary legal issues before the Commission were whether the agreement contained terms that were contrary to the public interest or inconsistent with the objectives of the Fair Work Act. The Commission needed to assess whether the agreement's provisions were fair and reasonable and if it adhered to the legislative requirements for simplicity and clarity. The Commission also considered whether the agreement demonstrated genuine bargaining and whether it was genuinely intended to be an enterprise agreement.

After carefully reviewing the agreement and the evidence provided by the parties, the Commission found that the agreement met the statutory criteria for approval. The Commission determined that the agreement was fair and reasonable, contained no terms that were contrary to the public interest, and was genuinely intended to be an enterprise agreement. The agreement was deemed to be simple, streamlined, and clear, and the Commission was satisfied that it represented the outcome of genuine bargaining between the parties. Consequently, the Commission approved the agreement, and it became a legally binding contract between the union and the employer.

The Fair Work Commission approved the Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023 between the Construction, Forestry, Maritime, Mining and Energy Union, Victorian Construction and General Division, and EXAR (VIC) PTY LTD. The agreement was registered and will govern the employment conditions of the union's members working as subcontractors in the carpentry and joinery sectors for the specified period. The approval ensures that the agreement's terms are enforceable as a legally binding contract and that the rights and obligations of the parties are clearly defined.

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