Construction, Forestry, Maritime, Mining and Energy Union

[2021] FWCA 7195

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/8824)

FORCE FORMWORK & CONCRETING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS FORMWORK ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 20 DECEMBER 2021

Application for approval of the FORCE FORMWORK & CONCRETING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023

[1] An application has been made for approval of an enterprise agreement known as the FORCE FORMWORK & CONCRETING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork 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 27 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

The matter involved an application for approval of the FORCE FORMWORK & CONCRETING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023. The application was heard by the Fair Work Commission, which is tasked with regulating and approving enterprise agreements under the Fair Work Act 2009. The dispute centred on whether the agreement met the necessary legal standards and whether it was appropriate for the Commission to approve it.

The primary legal issues that the Commission had to decide were whether the agreement was a genuine enterprise agreement, whether it was certified by a majority of the eligible employees, and whether it complied with the provisions of the Fair Work Act. The Commission also needed to consider if the agreement provided for appropriate dispute resolution mechanisms and whether it adhered to the principles of good faith bargaining. Additionally, the Commission examined whether the agreement contained terms that were not in the best interests of the employees, such as those that might be deemed to undermine the employees' rights or protections.

After reviewing the application, the Commission found that the agreement was indeed a genuine enterprise agreement that was certified by a majority of the eligible employees. The Commission also determined that the agreement complied with all relevant provisions of the Fair Work Act, including those related to dispute resolution and good faith bargaining. The Commission was satisfied that the agreement contained terms that were in the best interests of the employees, despite some concerns raised by the parties. Consequently, the Commission approved the FORCE FORMWORK & CONCRETING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023, noting that it would be effective from the date of the decision.

The final orders made by the Commission included the approval of the enterprise agreement, with the terms and conditions as set out in the application. The Commission also directed that the agreement be registered with the Fair Work Commission and that any changes to the agreement in the future must also be approved by the Commission. The parties were directed to give effect to the agreement and to abide by its terms.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established