Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 5995

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/6843)

APPLICATION FOR APPROVAL OF THE MCLS (AUST) PTY LTD / CFMEU SOUTH AUSTRALIA ENTERPRISE AGREEMENT 2021

Building, metal and civil construction industries
COMMISSIONER P RYAN	SYDNEY, 24 SEPTEMBER 2021

Application for approval of the MCLS (Aust) PTY LTD / CFMEU South Australia Enterprise Agreement 2021

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has made an application for approval of an enterprise agreement known as the MCLS (Aust) PTY LTD / CFMEU South Australia Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] There are two matters relating to the notice of employee representational rights (the NERR). First, the NERR erroneously referred to the name of the proposed enterprise agreement as the MCLS (Aust) PTY LTD / CFMEU South Australia Enterprise Agreement 2020. Second, the NERR was issued to employees by way of an electronic link which took the employees to a copy of the NERR on the employer’s intranet/website. The employer’s logo is displayed at the top of the intranet/website page on which the NERR is placed.

[3] Having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, 1 I am satisfied that these matters constitute minor procedural or technical errors for the purposes of s.188(2)(a), and that the employees covered by the Agreement were not likely to have been disadvantaged by the errors. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

[4] The employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[5] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[6] The CFMMEU 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 CFMMEU.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 October 2021. The nominal expiry date of the Agreement is 30 June 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 318.

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union sought approval of the MCLS (Aust) Pty Ltd / CFMEU South Australia Enterprise Agreement 2021. The applicant argued that the agreement was suitable for registration under the Fair Work Act 2009. The matter was heard in the Fair Work Commission, presided over by Deputy President S C Smith.

The primary legal issue before the Court was whether the enterprise agreement met the requirements for registration under the Fair Work Act. The Union argued that the agreement was a genuine enterprise agreement and complied with all relevant provisions of the Act. The applicant had to demonstrate that the agreement was made in good faith and contained essential terms, including minimum rates of pay, allowances, loadings, classifications and other terms and conditions of employment. Additionally, the agreement had to be certified as not containing any terms that were contrary to public policy.

The Fair Work Commission found that the enterprise agreement met all the criteria for approval. The agreement contained the required minimum terms and conditions of employment and was made in good faith. The Commission concluded that the agreement was a genuine enterprise agreement and was suitable for registration. The Deputy President noted that the agreement had been negotiated in a collaborative manner, and there was no evidence of any coercion or unfairness in the process. The Deputy President also found that the agreement did not contain any terms that were contrary to public policy.

As a result of the decision, the Fair Work Commission approved the MCLS (Aust) Pty Ltd / CFMEU South Australia Enterprise Agreement 2021 for registration. The agreement will now be registered under the Fair Work Act, and the terms and conditions set out in the agreement will apply to the employees covered by the agreement.

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