Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 5815

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/7007)

SUPERCUT UNIT TRUST (THE TRUSTEE FOR) T/AS SUPERCUT CONCRETE CUTTING SERVICES 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, 14 SEPTEMBER 2021

Application for approval of the SUPERCUT UNIT TRUST (THE TRUSTEE FOR) T/As SUPERCUT CONCRETE CUTTING SERVICES 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 SUPERCUT UNIT TRUST (THE TRUSTEE FOR) T/As SUPERCUT CONCRETE CUTTING SERVICES 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 21 September 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

1 [2019] FWCFB 318.

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CaseChat Overview and Summary

In the matter of the Supercut Unit Trust and the Construction, Forestry, Maritime, Mining and Energy Union, the case before the Fair Work Commission involved an application for the approval of a specific enterprise agreement. The Supercut Unit Trust, trading as Supercut Concrete Cutting Services, sought to implement the Subcontractors Concrete Sawing and Drilling Enterprise Agreement 2020-2023. This agreement was proposed between the employer and the CFMEU, representing the employees within the Victorian construction and general division. The core of the dispute centred on whether the proposed agreement met the legal requirements for approval under the Fair Work Act 2009.

The primary legal issues addressed by the Commission included the fairness of the proposed agreement, compliance with the safety net provisions, and whether the agreement adequately covered the relevant employees. The Commission had to determine if the agreement provided for a minimum rate of pay and conditions that were not less favourable than the applicable awards and the safety net. Additionally, the Commission assessed whether the agreement was genuinely negotiated and if it provided a pathway for resolving disputes.

The Fair Work Commission found that the proposed agreement met the necessary criteria for approval. The Commission was satisfied that the agreement provided for a minimum rate of pay and conditions that were not less favourable than the safety net. The Commission also determined that the agreement was genuinely negotiated and included provisions for the resolution of disputes. Consequently, the application for the approval of the Subcontractors Concrete Sawing and Drilling Enterprise Agreement 2020-2023 was approved, effective from the date of the Commission’s decision.

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