DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/6260)

EFE CONSTRUCTION PTY. LTD. AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CAULKING AND SEALING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 28 JULY 2021

Application for approval of the EFE CONSTRUCTION PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the EFE CONSTRUCTION PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing 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 4 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 application in this matter was brought by the Construction, Forestry, Maritime, Mining and Energy Union, who sought approval of the Enterprise Agreement between EFE Construction Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023. The application was made before the Fair Work Commission, and the decision was handed down by Deputy President D M Bell. The legal issues that the court was required to consider included whether the agreement was an enterprise agreement within the meaning of the Fair Work Act 2009, and whether it had been made in accordance with the provisions of the Act. The court also considered whether the agreement met the good faith bargaining requirements of the Act, and whether the agreement was in the best interests of the employees.

The court began by examining the text of the Fair Work Act 2009, and found that the agreement did meet the requirements for an enterprise agreement. The court noted that the agreement covered a defined group of employees, and that the parties had engaged in good faith bargaining in the lead-up to the agreement. The court also found that the agreement was in the best interests of the employees, as it provided for a number of benefits, including increased pay and improved working conditions. The court concluded that the agreement met all of the requirements of the Act, and granted approval of the agreement.

The court also considered the arguments put forward by the applicant, and found that they did not have merit. The court noted that the applicant had not provided any evidence to suggest that the agreement was not in the best interests of the employees, and that the applicant had not demonstrated any breaches of the good faith bargaining requirements. The court found that the applicant's arguments were without merit, and that the agreement should be approved.

In conclusion, the court granted approval of the Enterprise Agreement between EFE Construction Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023. The court found that the agreement met all of the requirements of the Fair Work Act 2009, and that it was in the best interests of the employees. The court rejected the arguments put forward by the applicant, and found that they were without merit.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

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