Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 6373

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/7826)

IVERS CIVIL CONTRACTORS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS FORMWORK ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 22 OCTOBER 2021

Application for approval of the IVERS CIVIL CONTRACTORS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023

[1] An application has been made for approval of an enterprise agreement known as the IVERS CIVIL CONTRACTORS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork 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 29 October 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 the IVERS CIVIL CONTRACTORS PTY LTD and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023. The dispute centred on whether the agreement met the necessary standards for approval under the Fair Work Act 2009. The Commission was tasked with determining if the agreement complied with the legal requirements and protected the interests of both the employer and the employees.

The primary legal issues the Commission had to address were whether the agreement provided fair and reasonable terms, aligned with the national system for resolving industrial disputes, and met the specific requirements outlined in the Fair Work Act. The Commission also needed to assess whether the agreement contained provisions that were not genuinely negotiated or were otherwise objectionable under the Act. The negotiation process and the terms of the agreement, particularly those concerning wages, conditions, and other employment aspects, were closely examined to ensure they were fair and reasonable.

After thorough examination, the Commission concluded that the agreement was fair and reasonable, met the necessary standards for approval, and complied with the requirements of the Fair Work Act. The Commission found that the agreement was genuinely negotiated between the parties and contained terms that were fair and reasonable for both the employer and the employees. The Commission also noted that the agreement did not contain any terms that were objectionable or contrary to the national system for resolving industrial disputes. Consequently, the Commission approved the agreement, allowing it to come into effect as intended.

The Fair Work Commission approved the IVERS CIVIL CONTRACTORS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023, finding it to be fair and reasonable and in compliance with the Fair Work Act. The agreement was authorised to commence on the date of the decision.

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