Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 6864

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/8379)

PAD CONTRACTING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS
EARTHMOVING, EXCAVATION AND DRAINAGE ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 26 NOVEMBER 2021

Application for approval of the PAD CONTRACTING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023

[1] An application has been made for approval of an enterprise agreement known as the PAD CONTRACTING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage 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 3 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 before the court involved an application for approval of an enterprise agreement between PAD Contracting Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The application was brought by the union, and the employer was not opposed to the approval. The case was heard in the Fair Work Commission, Australia's workplace relations tribunal.

The key legal issue for the Commission was whether the proposed enterprise agreement was suitable for registration under the Fair Work Act 2009. The Commission had to consider whether the agreement complied with the legal requirements for enterprise agreements, including provisions for minimum wages and conditions, and whether the agreement had been made in good faith and without coercion. The Commission also had to ensure that the agreement did not discriminate against any group of employees and that it provided for a fair and reasonable process for resolving disputes.

In its decision, the Commission found that the agreement met all the legal requirements for registration. The Commission noted that the agreement provided for minimum wages and conditions that were not less favourable than those provided for in the relevant award, and that it included provisions for dispute resolution that were fair and reasonable. The Commission also found that the agreement had been made in good faith and without coercion, and that it did not discriminate against any group of employees.

The Fair Work Commission approved the proposed enterprise agreement, which will now be registered and will apply to employees of PAD Contracting Pty Ltd who are covered by the agreement. The agreement will provide for a range of terms and conditions of employment, including wages, hours of work, leave entitlements, and dispute resolution processes. The registration of the agreement will provide certainty and stability for both the employer and the employees, and will help to promote harmonious workplace relations.

Construction, Forestry, Maritime, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established