DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/6094)

PAZ NO. 10 PTY. LTD. AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS TILELAYERS ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 22 JULY 2021

Application for approval of the PAZ NO. 10 PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Tilelayers Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the PAZ NO. 10 PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Tilelayers 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 29 July 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 applicant, PAZ NO. 10 PTY. LTD., sought approval of an enterprise agreement from the Fair Work Commission under section 233 of the Fair Work Act 2009. The agreement was to be made between the employer and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), representing the employees. The dispute arose from the proposed terms and conditions outlined in the agreement, which was intended to cover the period from 2020 to 2023. The Commission had to determine whether the agreement met the criteria for approval as set out in the Fair Work Act.

The central legal issues before the court involved whether the agreement was in the best interests of the employees and whether it complied with the procedural requirements of the Fair Work Act. Specifically, the court had to assess whether the agreement was genuinely negotiated, if it addressed the needs of the employees fairly and appropriately, and whether the agreement was likely to lead to improved working conditions and outcomes for the employees. Additionally, the court needed to consider whether the agreement was fair and reasonable in terms of the balance of rights and obligations it imposed on both parties.

After considering the submissions from both parties and reviewing the evidence presented, the Fair Work Commission found that the proposed enterprise agreement met the necessary criteria for approval. The Commission determined that the agreement was genuinely negotiated, addressed the needs of the employees fairly, and was likely to lead to improved working conditions and outcomes for the employees. The Commission also concluded that the agreement was fair and reasonable in terms of the balance of rights and obligations it imposed on both parties. Therefore, the application for approval of the enterprise agreement was approved.

The Fair Work Commission approved the PAZ NO. 10 PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Tilelayers Enterprise Agreement 2020-2023, subject to the terms and conditions outlined in the agreement. The approval was effective from the date of the Commission's decision and remained in force until the end of the agreement period, unless terminated earlier in accordance with the terms of the agreement or by further order of the Commission.

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