Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 6287

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/7725)

FREDERICKS FAMILY TRUST (THE TRUSTEE FOR) T/AS FREDERICKS FABRICATIONS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS RIGGER/STEEL ERECTOR ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 15 OCTOBER 2021

Application for approval of the FREDERICKS FAMILY TRUST (THE TRUSTEE FOR) T/As FREDERICKS FABRICATIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector Enterprise Agreement 2020-2023

[1] An application has been made for approval of an enterprise agreement known as the FREDERICKS FAMILY TRUST (THE TRUSTEE FOR) T/As FREDERICKS FABRICATIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector 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 22 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

In the Fair Work Commission, an application was made by the Fredericks Family Trust, acting as trustee for Fredericks Fabrications Pty Ltd, and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) for the approval of their enterprise agreement, titled the Subcontractors Rigger/Steel Erector Enterprise Agreement 2020-2023. The agreement was being sought under the Fair Work Act 2009, with the primary aim of establishing terms and conditions of employment for riggers and steel erectors who are subcontractors in the construction industry in Victoria.

The key legal issues before the Commission involved whether the proposed agreement met the criteria set out in the Fair Work Act for being a "better off overall test" agreement. This meant the Commission needed to determine whether the agreement would provide employees with a total remuneration package that was at least as good as what they would receive under the relevant awards, and whether it allowed for appropriate flexibility and productivity improvements in the industry. The Commission also had to consider whether the agreement contained provisions that were contrary to the Act or public policy.

In rendering its decision, the Commission examined the various provisions of the agreement, weighing the benefits and detriments to employees. It found that the agreement did indeed offer a total remuneration package that was at least as good as what the employees would receive under the relevant awards. Additionally, the Commission was satisfied that the agreement contained appropriate mechanisms for flexibility and productivity improvements without compromising the rights and protections of employees. The Commission concluded that the agreement did not contain any provisions that were contrary to the Act or public policy.

Accordingly, the Commission approved the Subcontractors Rigger/Steel Erector Enterprise Agreement 2020-2023, effective from the date of the decision, with the provision that it would be registered by the Registrar of the Fair Work Commission. The agreement was set to operate for a period of three years, and its terms would apply to riggers and steel erectors who are subcontractors in the construction industry in Victoria.

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