Construction, Forestry, Maritime, Mining and Energy Union

[2021] FWCA 5907

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/7339)

MELBOURNE STEEL ERECTORS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS RIGGER/STEEL ERECTOR ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 21 SEPTEMBER 2021

Application for approval of the MELBOURNE STEEL ERECTORS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector Enterprise Agreement 2020-2023

[1] An application has been made for approval of an enterprise agreement known as the MELBOURNE STEEL ERECTORS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector 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 28 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 matter before the Fair Work Commission concerned an application for approval of the Melbourne Steel Erectors Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector Enterprise Agreement 2020-2023. The dispute arose as both parties sought to have the agreement recognised as meeting the requirements of the Fair Work Act 2009.

The primary legal issue before the Commission was whether the terms of the enterprise agreement complied with the provisions of the Fair Work Act, particularly in relation to the process for its making and the content of its terms and conditions. This involved assessing whether the agreement was made in accordance with the relevant provisions of the Act, and whether it included all the required terms and conditions, including minimum entitlements and the processes for bargaining.

The Commission examined the process through which the agreement was made, including the evidence of the parties regarding the extent of bargaining and the circumstances in which the agreement was reached. It also considered the content of the agreement, including whether it included all the necessary terms and conditions as required by the Act. The Commission determined that the agreement was made in accordance with the Act and that it contained all the required terms and conditions. The Commission approved the agreement, finding that it met the statutory requirements and was fair and reasonable.

The Commission's final order was to approve the Melbourne Steel Erectors Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector Enterprise Agreement 2020-2023, confirming its compliance with the Fair Work Act and its terms and conditions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established