Construction, Forestry, Maritime, Mining and Energy Union

[2021] FWCA 7041

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/8613)

FERLIGOJ NOMINEES PTY LTD AS TRUSTEE FOR FERLIOGOJ TRUST AND CUT AND KORE PTY. LIMITED AS TRUSTEE FOR HORNE TRUST T/AS CUT AND CORE AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONCRETE SAWING AND DRILLING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 9 DECEMBER 2021

Application for approval of the FERLIGOJ NOMINEES PTY LTD AS TRUSTEE FOR FERLIOGOJ TRUST AND CUT AND KORE PTY. LIMITED AS TRUSTEE FOR HORNE TRUST T/As CUT AND CORE and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Sawing and Drilling Enterprise Agreement 2020-2023

[1] An application has been made for approval of an enterprise agreement known as the FERLIGOJ NOMINEES PTY LTD AS TRUSTEE FOR FERLIOGOJ TRUST AND CUT AND KORE PTY. LIMITED AS TRUSTEE FOR HORNE TRUST T/As CUT AND CORE and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Sawing and Drilling 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 16 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 case involves an application for the approval of the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Sawing and Drilling Enterprise Agreement 2020-2023 between Ferligoj Nominees Pty Ltd as trustee for the Ferliogoj Trust, Cut and Kore Pty. Limited as trustee for the Horne Trust trading as Cut and Kore, and the Construction, Forestry, Maritime, Mining and Energy Union. The application was heard by the Fair Work Commission. The central issue before the Commission was whether the proposed enterprise agreement met the requirements for approval under the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement provided for the fair and efficient resolution of workplace issues, and if it was in compliance with the relevant provisions of the Act.

In assessing the application, the Fair Work Commission considered whether the agreement provided for a fair and efficient system for the resolution of workplace issues. The Commission also examined whether the agreement was consistent with the provisions of the Fair Work Act, including the requirement that it not have the purpose, or the effect, of undermining the right to free bargaining. The Commission was particularly attentive to provisions relating to the regulation of work conditions, hours of work, and the classification of employees. The decision hinged on whether these provisions ensured that the agreement would lead to efficient and fair workplace relations, without undermining the fundamental right to free collective bargaining.

After a thorough examination of the agreement, the Fair Work Commission concluded that the proposed enterprise agreement was consistent with the requirements of the Fair Work Act. The Commission found that the agreement provided for a fair and efficient resolution of workplace issues and did not undermine the right to free collective bargaining. The agreement was approved on the basis that it met the legislative criteria for workplace fairness and efficiency. The Commission's decision was based on the comprehensive nature of the agreement, which included provisions for fair work conditions, appropriate classification of employees, and a system for resolving workplace disputes.

The Fair Work Commission approved the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Sawing and Drilling Enterprise Agreement 2020-2023, subject to the terms and conditions outlined in the agreement. This approval ensures that the agreement will govern the employment conditions of the relevant employees for the specified period, providing a framework for fair and efficient workplace relations. The decision by the Commission affirms the agreement's compliance with the Fair Work Act, allowing for its implementation in accordance with the approved terms.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established