Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 6598

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/8106)

ALULINE COMMERCIAL PTY LTD T/AS ALULINE COMMERCIAL PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS ALUMINIUM & GLASS ENTERPRISE AGREEMENT 2020-2023

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

Application for approval of the ALULINE COMMERCIAL PTY LTD T/As ALULINE COMMERCIAL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Aluminium & Glass Enterprise Agreement 2020-2023

[1] An application has been made for approval of an enterprise agreement known as the ALULINE COMMERCIAL PTY LTD T/As ALULINE COMMERCIAL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Aluminium & Glass 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

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union sought approval of an enterprise agreement between ALULINE COMMERCIAL PTY LTD T/As ALULINE COMMERCIAL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Aluminium & Glass Enterprise Agreement 2020-2023. The dispute arose from the terms of the agreement and its compliance with the relevant legislative framework. The Commission was required to determine whether the agreement met the criteria for approval under the Fair Work Act 2009, including whether it facilitated the efficient operation of the enterprise and provided for the fair and reasonable terms and conditions of employment.

The key legal issues centred on the provisions of the agreement, particularly those concerning wages, hours of work, and other employment terms. The Commission had to consider whether the agreement was made in good faith, whether it contained terms that were fair and reasonable, and whether it facilitated the efficient operation of the enterprise. Additionally, the Commission examined the process through which the agreement was made, including whether there was adequate consultation and negotiation between the parties.

The Fair Work Commission found that the agreement did not meet the statutory requirements for approval. The Commission noted that certain provisions within the agreement were not consistent with the principles of fairness and reasonableness, and did not facilitate the efficient operation of the enterprise. The Commission also found that there were procedural shortcomings in the negotiation and consultation process. As a result, the application for approval was dismissed. The Commission concluded that the agreement did not adequately balance the interests of the employer and employees and did not provide for fair and reasonable terms and conditions of employment.

No orders were made as the application for approval was dismissed.

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