DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/6395)

PRO GLASS AUSTRALIA PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS GLASS AND GLAZING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 5 AUGUST 2021

Application for approval of the PRO GLASS AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Glass and Glazing Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the PRO GLASS AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Glass and Glazing 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 12 August 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 case before the Fair Work Commission involved an application for the approval of a Subcontractors Glass and Glazing Enterprise Agreement between PRO GLASS AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) for the period 2020-2023. The union and the employer sought to have the agreement recognised as a registered enterprise agreement under the Fair Work Act 2009. The primary dispute centred around the compliance of the agreement with the statutory requirements for enterprise agreements, particularly those concerning the agreement's coverage, negotiation processes, and the provisions within the agreement itself.

The legal issues before the Commission included whether the agreement was genuinely negotiated and whether it complied with the formal requirements of the Fair Work Act. The Commission had to determine if the negotiation process was bona fide, if the agreement covered the correct bargaining unit, and if the terms and conditions set out in the agreement were fair and reasonable. Additionally, the Commission considered whether the agreement met the specific requirements for agreements covering subcontractors, given the unique industrial context of the glass and glazing industry.

The Commission found that the agreement was indeed the product of genuine negotiations between the parties. It was noted that both parties had engaged in a comprehensive negotiation process, resulting in a detailed and comprehensive agreement. The Commission also determined that the agreement was appropriately scoped to cover the intended bargaining unit and that the terms and conditions within the agreement were fair and reasonable. The agreement contained provisions that addressed the specific needs and concerns of the workers in the glass and glazing industry, including those related to subcontractors. Having satisfied itself on these points, the Commission approved the agreement as a registered enterprise agreement.

Consequently, the Fair Work Commission approved the Subcontractors Glass and Glazing Enterprise Agreement 2020-2023 between PRO GLASS AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division), effective from the date of the decision. This approval ensures that the agreement will operate as a registered enterprise agreement under the Fair Work Act, governing the terms and conditions of employment for the relevant workers in the glass and glazing industry.

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