Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 6002

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/7410)

SURETEC AUSTRALIA PTY LTD 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, 27 SEPTEMBER 2021

Application for approval of the SURETEC AUSTRALIA PTY LTD 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 SURETEC AUSTRALIA PTY LTD 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 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 by Suretec Australia Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) to have their enterprise agreement approved. The agreement, named the Subcontractors Remedial Concrete and Access Flooring Enterprise Agreement 2020-2023, sought to regulate the terms and conditions of employment for subcontractors in the remedial concrete and access flooring industry. The union and the employer jointly submitted the application to the Commission, which is tasked with ensuring the agreement meets the criteria for approval under the Fair Work Act 2009.

The primary legal issues the Commission had to address were whether the agreement was made genuinely by the parties, whether it contained only matters negotiable in good faith, and whether it complied with the "better off overall test." This test requires that the agreement must be at least as favourable to the employees as their previous conditions of employment or the applicable award. Additionally, the Commission considered whether the agreement was consistent with the Fair Work (Registered Organisations) Act 2009, which mandates that registered organisations must not engage in certain protected industrial action while the agreement is in effect.

The Fair Work Commission determined that the agreement was made genuinely by the parties, as evidenced by the extensive negotiation process and the absence of any undue influence or coercion. The Commission found that all matters in the agreement were negotiable in good faith and that the agreement met the better off overall test. It was concluded that the employees would be at least as well off, and in some cases better off, under the terms of the agreement compared to their previous conditions. The agreement was also found to be consistent with the Fair Work (Registered Organisations) Act 2009, as it included provisions that would prevent the union from engaging in protected action during the term of the agreement.

The Fair Work Commission approved the Subcontractors Remedial Concrete and Access Flooring Enterprise Agreement 2020-2023, effective from the date of the decision. The approval ensures that the terms and conditions of employment for the subcontractors in the industry are regulated by the agreement, providing a stable and fair working environment. The decision also reinforces the importance of genuine negotiation and the better off overall test in the approval of enterprise agreements.

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