DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/6090)

SCB CIVIL 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, 20 JULY 2021

Application for approval of the SCB CIVIL 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 SCB CIVIL 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 27 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

In the Federal Court of Australia, a case was brought regarding the approval of the Subcontractors Formwork Enterprise Agreement 2020-2023 between SCB Civil Pty. Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The dispute arose from the application submitted by the parties for the Fair Work Commission to approve the enterprise agreement under the Fair Work Act 2009. The CFMEU sought to challenge the application, arguing various issues concerning the fairness and compliance of the agreement with relevant labour laws.

The court was tasked with determining whether the enterprise agreement met the necessary requirements under the Fair Work Act, specifically focusing on the procedural fairness and whether the agreement was genuinely negotiated and free from any improper influence. The CFMEU contended that the agreement failed to adequately protect subcontractors and did not genuinely reflect a bargain between the parties. The court also considered whether the agreement complied with the good faith bargaining provisions and if it met the standards of procedural fairness.

In its judgment, the court examined the evidence and submissions from both parties. It found that the agreement was genuinely negotiated and did not suffer from any procedural unfairness. The court noted that the negotiation process was transparent, and the agreement reflected a genuine bargain. The court further held that the agreement complied with the good faith bargaining requirements and met the standards of procedural fairness. Consequently, the application for approval of the enterprise agreement was successful.

The court ordered the approval of the Subcontractors Formwork Enterprise Agreement 2020-2023 between SCB Civil Pty. Ltd and the CFMEU (Victorian Construction and General Division). The decision was grounded on the findings that the agreement was fairly negotiated and met all statutory requirements under the Fair Work Act. This ruling affirmed the validity of the enterprise agreement, allowing it to proceed as intended by the parties.

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