Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 5952

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/7392)

THOMAS TOOHEY FAMILY TRUST (THE TRUSTEE FOR) T/AS DIRECT CUT PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONCRETE SAWING AND DRILLING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 23 SEPTEMBER 2021

Application for approval of the THOMAS TOOHEY FAMILY TRUST (THE TRUSTEE FOR) T/AS DIRECT CUT PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Sawing and Drilling Enterprise Agreement 2020-2023

[1] An application has been made for approval of an enterprise agreement known as the THOMAS TOOHEY FAMILY TRUST (THE TRUSTEE FOR) T/AS DIRECT CUT PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Sawing and Drilling 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 30 September 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 case before the Fair Work Commission involves an application for the approval of the THOMAS TOOHEY FAMILY TRUST (THE TRUSTEE FOR) T/AS DIRECT CUT PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Sawing and Drilling Enterprise Agreement 2020-2023. This agreement pertains to the terms and conditions of employment for concrete sawing and drilling subcontractors within the Victorian construction and general division. The Trust, which operates under Direct Cut Pty Ltd, and the CFMEU, representing the employees, sought to have the enterprise agreement formally recognised and approved by the Commission.

The legal issues before the Commission included whether the agreement met the statutory requirements for approval under the Fair Work Act 2009. This involved assessing whether the agreement provided for minimum terms and conditions, was free from prohibited content, and had been genuinely agreed upon by the parties. The Commission also needed to determine if the agreement met the procedural requirements, including whether proper consultation and negotiation processes had been followed.

In reaching its decision, the Commission examined the content and procedural aspects of the agreement. It found that the agreement provided for fair and reasonable minimum terms and conditions for the employees, and did not contain any content that was prohibited under the Act. Additionally, the Commission was satisfied that the agreement had been genuinely negotiated and that the procedural requirements for approval had been met. Given these findings, the Commission approved the enterprise agreement, recognising it as a lawful and binding instrument between the Trust and the CFMEU.

The final orders of the Commission included the approval of the THOMAS TOOHEY FAMILY TRUST (THE TRUSTEE FOR) T/AS DIRECT CUT PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Sawing and Drilling Enterprise Agreement 2020-2023, effective from the date of the Commission's decision. The approved agreement now serves as the basis for the employment conditions of concrete sawing and drilling subcontractors within the specified 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