Construction, Forestry, Maritime, Mining and Energy Union

[2021] FWCA 6114

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/7567)

MATTHEWS GLASS & WINDOWS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS ALUMINIUM & GLASS ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 5 OCTOBER 2021

Application for approval of the MATTHEWS GLASS & WINDOWS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Aluminium & Glass Enterprise Agreement 2020-2023

[1] An application has been made for approval of an enterprise agreement known as the MATTHEWS GLASS & WINDOWS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Aluminium & Glass 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 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 October 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union applied for the approval of the MATTHEWS GLASS & WINDOWS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Aluminium & Glass Enterprise Agreement 2020-2023. The agreement was made by the union and the company and sought to regulate the employment terms and conditions of the company's employees who are members of the union. The main dispute was whether the agreement contained all the required provisions and complied with the relevant industrial laws.

The central legal issues before the Commission were whether the agreement was a bona fide enterprise agreement within the meaning of the Fair Work Act 2009, and whether it contained all the necessary provisions and was free from prohibited content. The Commission had to consider whether the agreement complied with the procedural requirements for making an enterprise agreement and whether it met the standards of good faith bargaining and procedural fairness. The Commission also needed to assess whether the agreement contained all the mandated provisions, including the minimum terms and conditions set out in the Fair Work Act and the relevant modern awards.

The Commission found that the agreement was a bona fide enterprise agreement that complied with the procedural requirements of the Fair Work Act. The Commission determined that the agreement was the product of genuine and meaningful bargaining between the parties and was not affected by any procedural unfairness. The Commission also found that the agreement contained all the required provisions, including the minimum terms and conditions set out in the Fair Work Act and the relevant modern awards. The Commission approved the agreement, subject to certain modifications to ensure compliance with the relevant industrial laws.

The Fair Work Commission approved the MATTHEWS GLASS & WINDOWS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Aluminium & Glass Enterprise Agreement 2020-2023, subject to certain modifications to ensure compliance with the relevant industrial laws. The modifications related to the calculation of penalty rates for work on public holidays and the definition of "working day" in the agreement. The Commission determined that these modifications were necessary to ensure that the agreement complied with the relevant modern awards and the Fair Work Act. The Commission also noted that the modifications did not significantly alter the overall terms and conditions of the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established