DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5662)

CARUSO TRADING TRUST (THE TRUSTEE FOR) T/AS CARUSO BRICKLAYING 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, 5 JULY 2021

Application for approval of the CARUSO TRADING TRUST (THE TRUSTEE FOR) T/AS CARUSO BRICKLAYING 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 CARUSO TRADING TRUST (THE TRUSTEE FOR) T/AS CARUSO BRICKLAYING 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 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 12 July 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 318.

CaseChat Overview and Summary

The matter before the court involved an application for the approval of an enterprise agreement between Caruso Bricklaying Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The union, representing bricklaying subcontractors, sought the court's endorsement of the agreement which outlined terms and conditions of employment for its members. The court's role was to assess whether the agreement complied with the Fair Work Act 2009 and met the requirements for approval under the industrial relations framework.

The central legal issues revolved around the agreement's compliance with the Act, specifically whether it adhered to the "better off overall test" (BOOT), ensuring that employees would be no worse off financially than under the previous terms. The court also needed to determine if the agreement was made in good faith and if it contained essential terms as mandated by the law. Furthermore, the court had to consider whether the union had followed the appropriate process in negotiating the agreement and if it had represented the interests of its members accurately.

In delivering the decision, the court examined the submissions and evidence presented by both parties. It found that the agreement was fair and reasonable, met the BOOT, and was made in good faith. The court was satisfied that the union had properly represented its members and that the agreement contained all required essential terms. Consequently, the court approved the enterprise agreement, acknowledging its compliance with the legislative requirements and its potential to improve the working conditions of the employees.

The final orders of the court approved the subcontractor bricklaying enterprise agreement, confirming its validity and enforceability. The court's endorsement of the agreement ensures that the terms and conditions outlined within it will govern the employment relationship between the union and the employer for the specified period. This decision provides clarity and certainty for both parties moving forward, ensuring that the agreement is upheld within the legal framework governing industrial relations in Australia.

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