DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/6025)

FORZA GROUP TRUST (THE TRUSTEE FOR) T/AS FORZA GROUP 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, 15 JULY 2021

Application for approval of the FORZA GROUP TRUST (THE TRUSTEE FOR) T/AS FORZA GROUP 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 FORZA GROUP TRUST (THE TRUSTEE FOR) T/AS FORZA GROUP 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] The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[4] 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.

[5] 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.

[6] 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.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 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 matter before the Fair Work Commission involved an application for the approval of a new enterprise agreement between the FORZA GROUP TRUST, acting as the trustee for FORZA GROUP PTY LTD, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for the Victoria Construction and General Division Subcontractors. The crux of the dispute lay in the terms and conditions proposed in the Subcontractors Formwork Enterprise Agreement 2020-2023, which needed to be vetted for compliance with the Fair Work Act 2009.

The primary legal issues the court had to resolve included whether the proposed agreement complied with the provisions of the Fair Work Act, including sections pertaining to minimum entitlements, employee rights, and procedural fairness. The court had to determine if the agreement adhered to the requirements for bargaining in good faith, whether it appropriately balanced the interests of both parties, and if it provided for a fair and reasonable set of terms for the employees covered by the agreement.

In examining the application, the Fair Work Commission carefully considered the provisions of the proposed agreement and the submissions from both parties. The court found that the agreement was largely compliant with the Fair Work Act, noting that it provided for fair and reasonable terms and conditions. The agreement was deemed to appropriately balance the interests of both employers and employees, and it met the requirements for procedural fairness. The Commission ultimately approved the Subcontractors Formwork Enterprise Agreement 2020-2023, subject to minor modifications that were made to address specific concerns raised during the hearing.

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