Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 5667

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/7303)

FISHTAILS ENTERPRISES PTY. LTD. T/AS CKI JOINERY AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CARPENTRY AND JOINERY ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 17 SEPTEMBER 2021

Application for approval of the FISHTAILS ENTERPRISES PTY. LTD. T/As CKI JOINERY and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023

[1] An application has been made for approval of an enterprise agreement known as the FISHTAILS ENTERPRISES PTY. LTD. T/As CKI JOINERY and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery 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 24 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

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMU) applied for the approval of the FISHTAILS ENTERPRISES PTY. LTD. trading as CKI JOINERY, and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023. The agreement had been registered by the Fair Work Ombudsman but was subject to the Commission's approval under section 233 of the Fair Work Act 2009. The employer and the union sought the Commission's endorsement of the agreement, which outlined terms and conditions of employment for carpenters and joiners working for the employer.

The Commission considered several legal issues pertinent to the approval of the agreement. These included whether the agreement was made genuinely without pressure, whether it met the requirements of the Fair Work Act, and if the agreement contained provisions that were not permissible under the law. The Commission also examined whether the agreement provided fair and reasonable terms and conditions for the employees, and if it complied with the procedural fairness principles.

The Commission found that the agreement was made genuinely without pressure and met the requirements of the Fair Work Act. The Commission observed that the agreement contained provisions that were not permissible, such as clauses that restricted the use of subcontractors and required the employer to provide work to union members. However, the Commission determined that these clauses were not significant enough to invalidate the entire agreement. The Commission also found that the agreement provided fair and reasonable terms and conditions for the employees and complied with the procedural fairness principles.

The Commission approved the agreement subject to certain modifications. The modifications included removing the clauses that restricted the use of subcontractors and required the employer to provide work to union members. The employer and the union were required to provide a modified agreement to the Commission within 28 days of the approval decision. The Commission's decision provides clarity on the requirements for approving enterprise agreements and the types of provisions that may not be permissible under the law.

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