Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 6613

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/8094)

VIC SAWING AND DRILLING PTY. LTD. 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 NOVEMBER 2021

Application for approval of the VIC SAWING AND DRILLING PTY. LTD. 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 VIC SAWING AND DRILLING PTY. LTD. 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 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 the VIC SAWING AND DRILLING PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Sawing and Drilling Enterprise Agreement 2020-2023. The dispute was heard in the Fair Work Commission. The applicant, VIC SAWING AND DRILLING PTY. LTD., sought the approval of an enterprise agreement, which was negotiated with the CFMEU, representing the employees in the concrete sawing and drilling sector.

The primary legal issue before the Commission was whether the proposed enterprise agreement met the necessary standards under the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement was fairly negotiated, contained terms and conditions that were not adverse to employees, and was in compliance with the procedural requirements set out in the Act. The Commission also considered if the agreement included the necessary 'protected action provisions' that ensure employees cannot be disadvantaged for participating in protected industrial action.

In reaching its decision, the Commission reviewed the negotiation process, the terms and conditions of the agreement, and the compliance with the procedural requirements. It was noted that the agreement had been negotiated in good faith and included provisions that were not detrimental to the employees. The Commission was satisfied that the protected action provisions were included, which safeguarded employees from any adverse consequences for engaging in lawful industrial activities. The Commission found that the agreement met all the statutory requirements and approved the application.

The Fair Work Commission approved the VIC SAWING AND DRILLING PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Sawing and Drilling Enterprise Agreement 2020-2023, confirming its validity and enforceability. This decision ensures that the terms and conditions set out in the agreement will apply to the relevant employees and employers, providing a framework for their industrial relationship.

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