DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/6924)

THE F CAM FAMILY TRUST (THE TRUSTEE FOR) T/AS FCAM BRICKLAYING & WALL SYSTEMS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS BRICK LAYING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 7 SEPTEMBER 2021

Application for approval of THE F CAM FAMILY TRUST (THE TRUSTEE FOR) T/As FCAM BRICKLAYING & WALL SYSTEMS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Brick laying Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as THE F CAM FAMILY TRUST (THE TRUSTEE FOR) T/As FCAM BRICKLAYING & WALL SYSTEMS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Brick laying 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 14 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 involved an application by the FCAMBRICKLAYING & WALL SYSTEMS PTY LTD (trading as FCAM Bricklaying & Wall Systems) and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) for the approval of their Subcontractors Bricklaying Enterprise Agreement 2020-2023. The application was made to the Fair Work Commission, which exercises industrial relations jurisdiction under the Fair Work Act 2009. The dispute centred on the terms and conditions of employment for bricklayers and labourers within the subcontracting sector of the construction industry in Victoria.

The primary legal issue before the Commission was whether the proposed enterprise agreement met the criteria for approval under section 230 of the Fair Work Act. This involved assessing whether the agreement provided for the pay and conditions of employees fairly and provided for the efficient, productive and harmonious conduct of the enterprise. The Commission also needed to consider whether the agreement provided for a fair process for resolving disputes between the parties.

The Commission found that the proposed agreement was fair and met the criteria for approval. It provided for reasonable pay and conditions, including provisions for penalty rates, meal breaks, overtime, and shift patterns. The agreement also contained clear dispute resolution mechanisms that allowed for both parties to raise and resolve issues in a timely and effective manner. The Commission was satisfied that the agreement provided for the efficient, productive and harmonious conduct of the enterprise, and that it was in the best interests of the employees covered by the agreement.

In light of the findings, the Commission approved the Subcontractors Bricklaying Enterprise Agreement 2020-2023. The agreement will now be registered with the Fair Work Commission and will apply to all employees covered by the agreement from the date of registration. The parties are bound by the terms of the agreement and must comply with its provisions.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established