DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/6186)

FOXCON WINDOWS FAMILY TRUST (THE TRUSTEE FOR) T/AS WINDOWS R US AUS AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS ALUMINIUM & GLASS ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 23 JULY 2021

Application for approval of the FOXCON WINDOWS FAMILY TRUST (THE TRUSTEE FOR) T/As WINDOWS R US AUS and the CFMEU (Victorian Construction and General Division) Subcontractors Aluminium & Glass Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the FOXCON WINDOWS FAMILY TRUST (THE TRUSTEE FOR) T/As WINDOWS R US AUS and the CFMEU (Victorian Construction and General Division) Subcontractors Aluminium & Glass 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 30 July 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

1 [2019] FWCFB 318.

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CaseChat Overview and Summary

In the matter of an application for approval of the FOXCON WINDOWS FAMILY TRUST (the trustee for) t/as WINDOWS R US AUS and the CFMEU (Victorian Construction and General Division) Subcontractors Aluminium & Glass Enterprise Agreement 2020-2023, the Fair Work Commission (FWC) was tasked with determining the merits of the agreement. The dispute involved the FOXCON WINDOWS FAMILY TRUST, operating as WINDOWS R US AUS, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The crux of the matter was the approval of the proposed enterprise agreement, which aimed to govern the terms and conditions of employment for workers in the aluminium and glass subcontracting sector.

The central legal issue before the FWC was whether the proposed agreement complied with the requirements of the Fair Work Act 2009 (Cth), particularly with respect to the provisions concerning minimum rates of pay, working hours, and other employment conditions. The FWC had to consider whether the agreement met the criteria for being a "better off overall test" (BOOT) and if it was in the best interest of the employees it was intended to cover. This involved assessing the agreement's provisions against the principles of procedural fairness and substantive fairness, ensuring that the agreement was not only procedurally sound but also substantively fair and reasonable.

The FWC carefully examined the provisions of the agreement and found that it met the necessary legal standards. The Commission noted that the agreement contained provisions that were fair and reasonable, and provided for minimum rates of pay and conditions that were not less favourable than the applicable awards or the National Employment Standards. The FWC was satisfied that the agreement was likely to be a BOOT for the employees and that it complied with the relevant provisions of the Fair Work Act. Consequently, the FWC approved the proposed enterprise agreement, allowing it to come into effect as of the date specified in the agreement.

The final orders of the FWC included the approval of the CFMEU (Victorian Construction and General Division) Subcontractors Aluminium & Glass Enterprise Agreement 2020-2023, effective from the date of the decision. The Commission also noted that the agreement would be registered on the Register of Approved Agreements and that it would be binding on the parties involved. This decision provided clarity and legal certainty for both the employer and the employees, ensuring that the terms of the agreement were fair and reasonable, and complied with the requirements of the Fair Work Act.

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