DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/6068)

THE MCMASTER CHILDRENS TRUST T /AS ALLOVER WELDING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS ARCHITECTURAL FEATURES AND FITTINGS ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 19 JULY 2021

Application for approval of THE MCMASTER CHILDRENS TRUST T/AS ALLOVER WELDING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as THE MCMASTER CHILDRENS TRUST T/AS ALLOVER WELDING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings 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 26 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 Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union applied for approval of the McMaster Childrens Trust t/as Allover Welding Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023. The agreement was to be made under section 234 of the Fair Work Act 2009. The dispute centred on the fairness and appropriateness of the proposed agreement, with both parties arguing their positions. The Commission needed to determine whether the agreement met the criteria for being deemed as a "better off overall test" under the Act, and if it adhered to the principles of procedural fairness.

The Commission examined the process through which the agreement was formed, assessing whether it was negotiated in good faith and if the parties had a genuine opportunity to participate in the negotiation process. The Union argued that the agreement did not adequately represent the interests of its members, while the employer contended that the agreement was a fair and reasonable outcome. The Commission considered the evidence and submissions from both parties, focusing on the negotiation process and the content of the agreement. It was determined that the agreement was made in good faith and that the process was fair and appropriate.

The Commission found that the agreement met the "better off overall test" and was procedurally fair. It approved the agreement, which will now serve as the enterprise agreement for the specified period. The decision emphasised the importance of a fair and transparent negotiation process and the need for agreements to genuinely reflect the interests of the parties involved. The approval of the agreement ensures that the terms and conditions of employment for the covered employees are legally recognised and enforceable.

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