DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/6943)

HEXACON CONSTRUCTION PTY. LTD. 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, 8 SEPTEMBER 2021

Application for approval of the HEXACON CONSTRUCTION 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 HEXACON CONSTRUCTION PTY. LTD. 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 15 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 applicants, HEXACON CONSTRUCTION PTY. LTD. and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division), sought approval of their Enterprise Agreement from the Fair Work Commission. The nature of the dispute was whether the proposed agreement met the requirements of the Fair Work Act 2009 and if it was in the best interest of the employees and employers. The court involved was the Fair Work Commission, presided over by Commissioner R.J. Marshall.

The primary legal issue before the Commission was to determine if the Enterprise Agreement complied with the legislative framework, particularly sections 230 and 231 of the Fair Work Act, which require agreements to be "freely" negotiated and "in the best interests" of the employees and employers. Further, the Commission had to consider if the agreement met the procedural requirements under section 235 and if it was "better off, overall and protected" as required by section 231(1)(a). The Commission also needed to ensure that the agreement did not unfairly discriminate against employees and provided a fair resolution of any disputes.

The Fair Work Commission examined the negotiation process, the contents of the agreement, and the evidence provided by both parties. The Commission found that the agreement was the result of genuine negotiations and that it was in the best interests of both employees and employers. The agreement met the "better off, overall and protected" test, and there was no evidence of unfair discrimination. The procedural requirements of the Fair Work Act were also satisfied. Therefore, the Commission approved the Enterprise Agreement, finding that it complied with the legislative requirements and was fair and reasonable for both parties.

The final orders included the approval of the HEXACON CONSTRUCTION PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023, with specific provisions outlined in the agreement.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established