DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/6360)

NU-CON DESIGN & CONSTRUCTION VIC PTY. LTD T/AS CONFAB PRECAST PANELS AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS PRECAST PANEL ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 4 AUGUST 2021

Application for approval of the NU-CON DESIGN & CONSTRUCTION VIC PTY. LTD T/AS CONFAB PRECAST PANELS and the CFMEU (Victorian Construction and General Division) Subcontractors Precast Panel Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the NU-CON DESIGN & CONSTRUCTION VIC PTY. LTD T/AS CONFAB PRECAST PANELS and the CFMEU (Victorian Construction and General Division) Subcontractors Precast Panel 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] 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.

[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 11 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 involved an application for the approval of a subcontractor enterprise agreement between NU-CON DESIGN & CONSTRUCTION VIC PTY. LTD trading as CONFAB PRECAST PANELS and the CFMEU (Victorian Construction and General Division) for the period 2020-2023. The application was brought before the Fair Work Commission, which is the primary industrial relations tribunal in Australia. The nature of the dispute was the procedural fairness and compliance of the proposed agreement with relevant industrial laws and standards.

The legal issues before the Commission included whether the agreement was genuinely negotiated between the parties, if it complied with the formal requirements of the Fair Work Act 2009, and whether it met the criteria for being a "better off overall and in the round" agreement as required by the Fair Work Act. The Commission also needed to consider whether the process of negotiating and finalising the agreement was conducted in a manner that was procedurally fair and free from any undue influence or coercion.

The Fair Work Commission assessed the evidence provided by both parties and examined the negotiation process and the terms of the agreement. It found that the agreement was genuinely negotiated and that the process was procedurally fair. The Commission confirmed that the agreement met the formal requirements of the Fair Work Act and was better off overall and in the round for the employees covered by it. Consequently, the Commission approved the subcontractor enterprise agreement.

As a result of the Commission's decision, the CFMEU (Victorian Construction and General Division) Subcontractors Precast Panel Enterprise Agreement 2020-2023 was approved and will now be applicable to the employees of NU-CON DESIGN & CONSTRUCTION VIC PTY. LTD trading as CONFAB PRECAST PANELS.

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