Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 6749

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/8256)

ZINLOW GROUP PTY LTD AS TRUSTEE FOR WOLNIZER FAMILY TRUST AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS FENCING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 18 NOVEMBER 2021

Application for approval of the ZINLOW GROUP PTY LTD AS TRUSTEE FOR WOLNIZER FAMILY TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Fencing Enterprise Agreement 2020-2023

[1] An application has been made for approval of an enterprise agreement known as the ZINLOW GROUP PTY LTD AS TRUSTEE FOR WOLNIZER FAMILY TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Fencing 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 25 November 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 an enterprise agreement between the ZINLOW GROUP PTY LTD, acting as trustee for the WOLNIZER FAMILY TRUST, and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The dispute pertains to the terms of a Subcontractors Fencing Enterprise Agreement for the period 2020-2023. The matter was heard in the Fair Work Commission, which is responsible for regulating enterprise agreements and ensuring they comply with relevant industrial laws.

The legal issues before the court included whether the proposed enterprise agreement met the statutory requirements under the Fair Work Act 2009. Specifically, the court needed to determine if the agreement provided for fair and reasonable terms and conditions, was free from any unlawful content, and had been made in good faith. Additionally, the court examined if the agreement had been properly certified and if it complied with any relevant award or registered agreement that might be affected by its terms.

In its decision, the Fair Work Commission found that the Subcontractors Fencing Enterprise Agreement 2020-2023 met the necessary criteria for approval. The Commission concluded that the agreement was fair and reasonable, contained no unlawful provisions, and had been made in good faith. It also found that the agreement had been appropriately certified and did not adversely affect any applicable awards or registered agreements. Consequently, the Commission approved the enterprise agreement, allowing it to come into effect as of the specified date.

The final orders of the court included the approval of the Subcontractors Fencing Enterprise Agreement 2020-2023, effective from the date of the decision. The agreement was deemed to be in compliance with the relevant industrial laws, and the parties were directed to implement the terms as set out in the approved document.

Construction, Forestry, Maritime, Mining and Energy Union

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established