DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5244)

THE TRUSTEE FOR STRACHAN FAMILY TRUST TAS TOTAL WINDOW SERVICES PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CARPENTRY AND JOINERY ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 2 JUNE 2021

Application for approval of THE TRUSTEE FOR STRACHAN FAMILY TRUST Tas TOTAL WINDOW SERVICES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as THE TRUSTEE FOR STRACHAN FAMILY TRUST Tas TOTAL WINDOW SERVICES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery 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 9 June 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 a proposed enterprise agreement by the Trust for the Strachan Family Trust, trading as Total Window Services Pty Ltd, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), Victorian Construction and General Division. The court was tasked with assessing the application for the approval of the Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023. The primary legal issue that the court had to address was whether the proposed agreement complied with the relevant provisions of the Fair Work Act 2009. This involved an examination of the agreement's conformity with the procedural requirements and substantive standards set out in the Act, including considerations of whether the agreement was appropriately made and if it met the criteria for being a "single, clear and complete" agreement.

The court undertook a detailed review of the procedural aspects of the agreement, focusing on whether the bargaining process adhered to the statutory requirements, including the involvement of authorised bargaining representatives and the provision of necessary information to the employees. The court also considered the substantive provisions of the agreement, ensuring that it did not include matters that were prohibited or that it contained only permissible content. Furthermore, the court assessed if the agreement was fair and appropriate, taking into account the interests of both the employees and the employer, and whether it provided for appropriate dispute resolution mechanisms. After careful examination, the court found that the agreement satisfied all the necessary legal requirements and was fair and appropriate.

In light of its findings, the court approved the proposed Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023. The decision affirmed that the agreement was duly made and met all the statutory criteria for approval. The court's approval meant that the agreement could now be registered and would have legal effect, binding both the employer and the employees covered by the agreement. The final orders included the formal approval of the enterprise agreement, with the specific terms and conditions as set out in the application documents.

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