Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 5662

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/6991)

ABF ALUMINIUM BALUSTRADING SYSTEMS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL
DIVISION) SUBCONTRACTORS CARPENTRY AND JOINERY ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 14 SEPTEMBER 2021

Application for approval of the ABF ALUMINIUM BALUSTRADING SYSTEMS PTY LTD 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 ABF ALUMINIUM BALUSTRADING SYSTEMS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-202 (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 21 September 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this matter, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) applied for the approval of the ABF Aluminium Balustrading Systems Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023. The dispute was heard and determined by the Fair Work Commission. The CFMEU sought to have the enterprise agreement approved by the Commission, which would then apply to all employees of ABF Aluminium Balustrading Systems Pty Ltd.

The legal issues before the Commission centred around whether the agreement was a genuine enterprise agreement and whether it met the criteria set out in the Fair Work Act 2009. The Commission considered whether the agreement had been made by the employees in their capacity as employees, whether the agreement had been made free from coercion, and whether it complied with the procedural requirements of the Act. The Commission also examined the terms and conditions of the agreement to ensure they were fair and reasonable.

After examining the evidence and submissions presented by the parties, the Commission found that the agreement was a genuine enterprise agreement. The Commission was satisfied that the agreement had been made by the employees in their capacity as employees, that it was free from coercion, and that it complied with the procedural requirements of the Act. The Commission also found that the terms and conditions of the agreement were fair and reasonable, taking into account the nature of the industry and the bargaining positions of the parties.

As a result, the Commission approved the ABF Aluminium Balustrading Systems Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023. The agreement will now apply to all employees of ABF Aluminium Balustrading Systems Pty Ltd, and will remain in effect until the next agreement is made or until it is terminated or varied by the Commission.

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