Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 6466

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/7878)

FLOORCON PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS REMEDIAL CONCRETE AND ACCESS FLOORING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 28 OCTOBER 2021

Application for approval of the FLOORCON PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Remedial Concrete and Access Flooring Enterprise Agreement 2020-2023

[1] An application has been made for approval of an enterprise agreement known as the FLOORCON PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Remedial Concrete and Access Flooring 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 4 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, acting on behalf of FLOORCON PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors, applied for the approval of the Subcontractors Remedial Concrete and Access Flooring Enterprise Agreement 2020-2023. The agreement was intended to cover employees who are employed by FLOORCON PTY LTD, a concrete and access flooring contractor, and who are members of the union. The dispute centred on the terms and conditions of employment as set out in the proposed agreement and whether they complied with the relevant legislative framework.

The primary legal issue before the Commission was whether the proposed agreement complied with the Fair Work Act 2009, particularly the requirement that enterprise agreements must be free from prohibited content and must be made in good faith. The Commission had to determine if the agreement contained any provisions that were inconsistent with the Act or that were made without the requisite good faith. Additionally, the Commission had to assess whether the agreement met the requirements for coverage, including the necessity for a majority of employees in the bargaining unit to be covered by the agreement.

After thorough examination of the proposed agreement, the Commission found that it was free from prohibited content and had been made in good faith. The Commission noted that the agreement included provisions that were necessary for the operation of a safe and efficient workplace and were consistent with the statutory requirements. The agreement was also found to meet the coverage requirements, with a sufficient number of employees in the bargaining unit supporting the agreement. Consequently, the Commission approved the Subcontractors Remedial Concrete and Access Flooring Enterprise Agreement 2020-2023.

The Fair Work Commission approved the Subcontractors Remedial Concrete and Access Flooring Enterprise Agreement 2020-2023, effective from 1 January 2021, and registered it under the Fair Work Act 2009. This decision ensures that the terms and conditions of employment for the employees covered by the agreement are legally binding and enforceable.

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