DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/6527)

ENVIROFLEX PTY LTD T/AS ENVIROFLEX AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS ARCHITECTURAL FEATURES AND FITTINGS ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 13 AUGUST 2021

Application for approval of the ENVIROFLEX PTY LTD T/As ENVIROFLEX and the CFMEU (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the ENVIROFLEX PTY LTD T/As ENVIROFLEX and the CFMEU (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings 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 20 August 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

1 [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, the Construction, Forestry, Maritime, Mining and Energy Union (CFMU), sought approval of the ENVIROFLEX PTY LTD T/As ENVIROFLEX and the CFMEU (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023. The agreement was to be made under the Fair Work Act 2009 (Cth). The respondent, Enviroflex, opposed the application on several grounds, including that the agreement was not suitable for registration as it did not meet the better off, on the whole test. The matter was heard in the Fair Work Commission.

The central legal issue was whether the agreement met the criteria for approval under the Fair Work Act. This involved assessing whether the agreement was suitable for registration and whether it complied with the better off, on the whole, test. The court had to consider the terms of the agreement, the nature of the enterprise, and the impact of the agreement on the employees and the employer.

In its decision, the Commission found that the agreement was suitable for registration and met the better off, on the whole, test. The Commission concluded that the agreement provided for reasonable terms and conditions for the employees, and that the benefits provided by the agreement outweighed any detriments. The Commission also found that the agreement was made in good faith and that the process leading to the agreement was appropriate. The application for approval was therefore approved.

The Fair Work Commission approved the ENVIROFLEX PTY LTD T/As ENVIROFLEX and the CFMEU (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023. The Commission found that the agreement met the criteria for approval under the Fair Work Act and was suitable for registration. The agreement was approved and will be registered with the Fair Work Commission.

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