DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5798)

STEVEN VARTHALIS FAMILY TRUST (THE TRUSTEE FOR) T/AS BRICKON PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS BRICK LAYING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 7 JULY 2021

Application for approval of the STEVEN VARTHALIS FAMILY TRUST (THE TRUSTEE FOR) T/AS BRICKON PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Brick laying Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the STEVEN VARTHALIS FAMILY TRUST (THE TRUSTEE FOR) T/AS BRICKON PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Brick laying 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 & Others¹, 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 14 July 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

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 the Subcontractors Brick Laying Enterprise Agreement 2020-2023 between the STEVEN VARTHALIS FAMILY TRUST, trading as BRICKON PTY LTD, and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The dispute centred around the terms and conditions of employment and the nature of the enterprise agreement itself.

The legal issues before the Commission included whether the proposed agreement met the criteria for approval under the Fair Work Act 2009. Specifically, the Commission needed to determine if the agreement complied with the good faith bargaining requirements, whether it provided for fair and reasonable terms and conditions, and if it was appropriate to certify the agreement as a single-employer enterprise agreement. Additionally, the Commission had to consider whether the agreement was in the best interests of the employees covered by it.

The Fair Work Commission, after reviewing the submissions and evidence provided by both parties, concluded that the proposed agreement was appropriate for approval. The Commission found that the bargaining process was conducted in good faith, and the terms of the agreement were fair and reasonable. The Commission was satisfied that the agreement met the legislative requirements for certification and was in the best interests of the employees, as it provided for a comprehensive set of terms and conditions that addressed the needs of the bricklaying industry. Consequently, the Commission approved the agreement, making it legally binding from the date of the decision.

The final orders of the Commission included the approval and certification of the Subcontractors Brick Laying Enterprise Agreement 2020-2023, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission and would apply to the employees of the STEVEN VARTHALIS FAMILY TRUST, trading as BRICKON PTY LTD, as well as other relevant subcontractors within the specified industry.

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