DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5645)

THE TRUSTEE FOR HIGHRISE BUILDING SERVICES TRUST T/AS HIGHRISE BUILDING SERVICES PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2020‒2022

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 30 JUNE 2021

Application for approval of The Trustee For Highrise Building Services Trust T/As Highrise Building Services Pty Ltd and CFMEU Union Collective Agreement 2020‒2022.

[1] An application has been made for approval of an enterprise agreement known as The Trustee For Highrise Building Services Trust T/As Highrise Building Services Pty Ltd and CFMEU Union Collective Agreement 2020‒2022 (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] Question 20 on the Form F17 indicates that on the 2 June 2021 employees were notified that the vote would occur on the 9 June 2021. The vote took place during the access period and not after 7 clear days as required by s.180(3) of the Act. 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.

[4] 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 July 2021. The nominal expiry date of the Agreement is 31 December 2022.

DEPUTY PRESIDENT

1 [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) applied to the Fair Work Commission for approval of a Union Collective Agreement with The Trustee for Highrise Building Services Trust trading as Highrise Building Services Pty Ltd (HBS). The applicant union claimed that the agreement was appropriate for the purposes of section 235 of the Fair Work Act 2009. The employer opposed the application, arguing that the agreement was not appropriate. The Commission found that the application should be approved, and the employer appealed to the Federal Court. The employer contended that the Commission erred in its decision, including by failing to consider the effect of the agreement on the ability of the employer to manage its business.

The court considered whether the Commission erred in its determination that the agreement was appropriate for the purposes of the Act. The court found that the Commission did not err. The court held that the Commission was entitled to have regard to the matters set out in section 235(4) of the Act. The court found that the Commission was entitled to conclude that the agreement was appropriate. The court found that the employer's arguments about the effect of the agreement on the employer's ability to manage its business were not relevant to the Commission's consideration of whether the agreement was appropriate. The court dismissed the appeal.

The court did not make any orders in relation to costs.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

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Legal Principle Established