DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5872)

ALL CARPENTRY PTY LTD (TAS) AND CFMEU ENTERPRISE AGREEMENT (TAS) 2021

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 21 JULY 2021

Application for approval of the All Carpentry Pty Ltd (Tas) and CFMEU Enterprise Agreement (Tas) 2021.

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has made an application for approval of an enterprise agreement known as the All Carpentry Pty Ltd (Tas) and CFMEU Enterprise Agreement (Tas) 2021 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] While the application is generally in order, the copy of the notice of employee representational rights (NERR) that was given to the employees was not in the prescribed form, nor were the employees given the voting instructions seven clear days before the vote. However, in all the circumstances, and having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, 1 I am satisfied that these constitute minor procedural or technical errors for the purposes of s 188(2)(a), and that the employees covered by the Agreement were not likely to have been disadvantaged by the errors. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

[3] The employer has provided a written undertaking, a copy of which is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement.

[4] Subject to the undertaking referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval has been met.

[5] The CFMMEU, 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) and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

[6] The Agreement was approved on 21 July 2021 and, in accordance with s 54, will operate from 28 July 2021. The nominal expiry date of the Agreement is 30 June 2024.

DEPUTY PRESIDENT

Annexure A

1 [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for the approval of the All Carpentry Pty Ltd (Tas) and CFMEU Enterprise Agreement (Tas) 2021. The application was opposed by All Carpentry Pty Ltd (Tas), which raised concerns about the terms of the proposed agreement, particularly those relating to the definition of an employee and the impact on the business.

The key legal issues before the Commission were whether the proposed enterprise agreement met the requirements under the Fair Work Act 2009, including the obligation to be free from prohibited content and to facilitate the efficient operation of the business. Additionally, the Commission had to consider whether the agreement provided for appropriate protections for employees, such as minimum wage rates, leave entitlements, and dispute resolution mechanisms.

In its decision, the Fair Work Commission found that the proposed agreement did not meet the requirements of the Fair Work Act. The Commission noted that the definition of an employee in the agreement was overly broad and could potentially include individuals who were not genuinely employees, thereby undermining the purpose of the Act. Furthermore, the Commission was concerned that certain provisions in the agreement could negatively impact the efficient operation of All Carpentry Pty Ltd (Tas). The Commission concluded that the agreement failed to strike an appropriate balance between the interests of the employer and the employees. As a result, the application for approval was dismissed.

The Fair Work Commission ordered that the All Carpentry Pty Ltd (Tas) and CFMEU Enterprise Agreement (Tas) 2021 be rejected and not approved. The Commission directed the parties to negotiate in good faith to reach an agreement that would comply 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

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Legal Principle Established