Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 5939

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/7373)

WATTIE'S WELDING 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
COMMISSIONER LEE	MELBOURNE, 23 SEPTEMBER 2021

Application for approval of the WATTIE'S WELDING 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
WATTIE'S WELDING 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 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 30 September 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the Fair Work Commission was an application for the approval of an enterprise agreement between Wattie's Welding Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The agreement in question was the Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023. The union sought approval for the agreement, which included terms and conditions of employment for its members working as subcontractors on architectural features and fittings in the construction industry. The central issue before the commission was whether the proposed enterprise agreement complied with the relevant provisions of the Fair Work Act 2009.

The commission considered various factors to determine if the agreement met the legal requirements for approval. It examined whether the agreement contained the prescribed minimum terms and conditions as stipulated in the Fair Work Act, and if it adhered to the procedural requirements for enterprise agreements, including the provision of a copy of the agreement to employees, the availability of the agreement for inspection, and the opportunity for employees to make submissions. Additionally, the commission assessed whether the agreement provided for genuine bargaining between the parties and whether it was free from any unfair content. The commission's decision hinged on whether the agreement could be approved in its entirety or if any modifications were necessary to meet the statutory criteria.

After careful consideration of the evidence and arguments presented, the Fair Work Commission determined that the proposed enterprise agreement did not meet the necessary standards for approval. The commission identified several deficiencies in the agreement, including issues with the provision of notice to employees and the opportunity for them to make submissions. Furthermore, the commission found that the agreement contained certain terms that were considered unfair under the Fair Work Act. Consequently, the commission rejected the application for approval of the enterprise agreement. The commission's decision was based on the need to ensure that enterprise agreements comply with the statutory requirements designed to protect employees and maintain fair industrial relations practices.

The Fair Work Commission ordered that the application for approval of the Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023 be refused. The commission directed the parties to address the identified deficiencies and resubmit the agreement for consideration, should they wish to pursue further approval. The decision underscores the importance of ensuring that enterprise agreements adhere to the legal framework established to protect the rights of employees and maintain equitable industrial relations practices.

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