DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/6197)

ROWARTH FAMILY TRUST (THE TRUSTEE FOR) T/AS WISHAW CONTRACTING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS FORMWORK ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 26 JULY 2021

Application for approval of the Rowarth Family Trust (The Trustee for) T/As Wishaw Contracting Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the Rowarth Family Trust (The Trustee for) T/As Wishaw Contracting Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork 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 2 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

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and the Rowarth Family Trust (The Trustee for) T/As Wishaw Contracting Pty Ltd contested the approval of the Subcontractors Formwork Enterprise Agreement 2020-2023. The CFMEU, representing the employees, sought approval for the agreement which outlined the terms and conditions of employment for the formwork subcontractors. Wishaw Contracting Pty Ltd, a construction company, argued against the approval on several grounds, including the fairness and practicality of certain provisions.

The central legal issues revolved around the fairness of the agreement and whether it met the statutory requirements under the Fair Work Act 2009. The court had to determine if the agreement was genuinely bargained, free from coercion, and contained terms that were fair and reasonable. Additionally, the court examined the procedural fairness of how the agreement was negotiated and if the process adhered to the standards set by the Fair Work Act.

The Fair Work Commission carefully analysed the provisions of the agreement and the submissions from both parties. The Commission considered the complexity of the negotiation process, the input of the employees and the employer, and the balance of the terms. After weighing these factors, the Commission found that the agreement was genuinely negotiated, fair, and met the statutory requirements. The Commission approved the Subcontractors Formwork Enterprise Agreement 2020-2023, concluding that it was in the best interest of the employees and the employer.

The final orders of the Commission included the approval of the agreement, which would now serve as the basis for the employment terms and conditions between the CFMEU and Wishaw Contracting Pty Ltd for the period 2020 to 2023.

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