DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5109)

THE TRUSTEE FOR BAO UNIT TRUST TAS BAO ENGINEERING AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS ARCHITECTURAL FEATURES AND FITTINGS ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 20 MAY 2021

Application for approval of The Trustee for Bao Unit Trust Tas Bao Engineering and the CFMEU (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023.

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has made an application for approval of an enterprise agreement known as the Trustee for Bao Unit Trust Tas Bao Engineering and the CFMEU (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] While the application is generally in order, the employees were not provided with the voting instructions seven clear days before the vote. However, in all the circumstances, and having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, 1 I am satisfied that this constitutes a minor procedural or technical error for the purposes of s 188(2)(a), and that the employees covered by the agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

[3] On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval has been met.

[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 CFMMEU, 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) and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

[6] The Agreement was approved on 20 May 2021 and, in accordance with s 54, will operate from 27 May 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

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and The Trustee for Bao Unit Trust Tas Bao Engineering applied for the approval of a new enterprise agreement, the Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023. This agreement was intended to replace an existing agreement, the Subcontractors Architectural Features and Fittings Enterprise Agreement 2017-2020, which was set to expire. The dispute centred on the terms and conditions of employment, wages, and other provisions that would apply to the workers covered by the agreement.

The legal issues before the Commission were whether the proposed agreement met the requirements of the Fair Work Act 2009 and whether it was in the best interests of the employees it covered. This involved examining the agreement's provisions to ensure they complied with the provisions of the Act, including those relating to minimum entitlements and the protection of employees' rights. Additionally, the Commission had to consider whether the agreement provided a fair and reasonable outcome for the employees.

The Commission found that the proposed agreement met the legislative requirements and was in the best interests of the employees. The agreement provided for a range of protections and benefits for the employees, including wages, leave entitlements, and other conditions of employment. The Commission was satisfied that the agreement provided a fair and reasonable outcome for the employees and approved the agreement accordingly. The new agreement will now apply to the employees covered by it, replacing the existing agreement.

The final orders of the Commission were that the Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023 be approved as a registered agreement under the Fair Work Act 2009. The agreement will come into effect on the expiry of the existing agreement and will apply to the employees covered by it. The Commission's decision provides certainty for the employees and employers covered by the agreement, ensuring that they are protected by a fair and reasonable set of terms and conditions of employment.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established