Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 6457

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/7889)

K1 BUILDING CONSTRUCTION PTY LTD T/AS K1 CONSTRUCTION (VIC) 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 K1 BUILDING CONSTRUCTION PTY LTD T/AS K1 CONSTRUCTION (VIC) 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 K1 BUILDING CONSTRUCTION PTY LTD T/AS K1 CONSTRUCTION (VIC) 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

The matter before the Fair Work Commission involved an application for the approval of a specific enterprise agreement between K1 Building Construction Pty Ltd trading as K1 Construction (Vic) and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Remedial Concrete and Access Flooring Enterprise Agreement 2020-2023. The dispute centred on whether the agreement met the necessary requirements under the Fair Work Act 2009 to be formally approved. The application was heard and determined by the Fair Work Commission, an Australian statutory body responsible for the resolution of workplace disputes and the oversight of industrial relations.

The legal issues that the Commission had to resolve included whether the agreement contained all the required terms as outlined in the Fair Work Act, whether the agreement had been made in good faith, and whether the union had genuinely represented the employees in the bargaining process. Additionally, the Commission had to consider whether the agreement complied with the provisions of the Act regarding the fairness and reasonableness of the terms and conditions of employment.

The Commission found that the agreement contained all the necessary required terms and was made in good faith. It was established that the union had genuinely represented the employees, and the terms and conditions of employment were found to be fair and reasonable. The Commission was satisfied that the agreement complied with the requirements of the Fair Work Act and approved it accordingly. This decision ensured that the parties could proceed with the agreed terms and conditions, providing a stable and legally binding framework for the employment relationship.

As a result of the Commission's decision, the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Remedial Concrete and Access Flooring Enterprise Agreement 2020-2023 was approved and will serve as the legally binding agreement between K1 Building Construction Pty Ltd and the union. This approval ensures that the terms and conditions of employment are in compliance with the Fair Work Act and provides certainty and stability for both parties.

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