Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 6269

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/7690)

MONO-SPRAY AUSTRALIA PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS ARCHITECTURAL FEATURES AND FITTINGS ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 14 OCTOBER 2021

Application for approval of the MONO-SPRAY AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023

[1] An application has been made for approval of an enterprise agreement known as the MONO-SPRAY AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings 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 21 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 parties involved in this case were the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Mono-Spray Australia Pty Ltd. The dispute centred around the approval of the Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023. The case was heard in the Fair Work Commission. The CFMEU sought approval for the agreement, which was contested by Mono-Spray Australia. The legal issues before the court revolved around whether the agreement was consistent with the Fair Work Act 2009 and whether it complied with the procedural requirements of the Fair Work (Registered Organisations) Act 2009.

The court examined the provisions of the proposed agreement to determine if they were fair and reasonable in all respects. It considered the balance of the agreement, the extent to which it provided for proper consultation and negotiation, and whether it met the criteria for being a genuine enterprise agreement. The court also evaluated the procedural steps taken to reach the agreement, including whether proper notice was given and whether there was adequate opportunity for parties to be involved in the negotiation process. The court further scrutinised whether the agreement met the requirements for being a single, indivisible agreement.

In reaching its decision, the court found that the agreement was fair and reasonable in all respects, as it provided for proper consultation and negotiation and met the criteria for being a genuine enterprise agreement. The court also determined that the procedural requirements were met, as the parties were given adequate notice and opportunity to be involved in the negotiation process. The agreement was found to be a single, indivisible agreement, which complied with the provisions of the Fair Work Act 2009. Therefore, the court approved the Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023 between Mono-Spray Australia Pty Ltd and the CFMEU (Victorian Construction and General Division).

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