DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4784)

STRUCTURAL SERVICES AUSTRALIA PTY LTD 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 MASSON	MELBOURNE, 5 MAY 2021

Application for approval of the STRUCTURAL SERVICES AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the STRUCTURAL SERVICES AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings 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 & 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 May 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

1 [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Federal Court of Australia was asked to approve the Structural Services Australia Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023. The application was brought by the employer, Structural Services Australia Pty Ltd, and the union, CFMEU. The nature of the dispute was the validity and enforceability of the proposed enterprise agreement under the Fair Work Act 2009.

The primary legal issues before the court were whether the enterprise agreement complied with the requirements of the Fair Work Act, specifically whether it was made in good faith, and if it was made for the purpose of creating an enterprise agreement. Additionally, the court needed to consider whether the agreement was in accordance with the provisions of the act, and if it was certified as a single interest employee agreement. The court was also tasked with determining if the agreement was appropriate for the employees it covered and if it included appropriate dispute resolution mechanisms.

The court found that the enterprise agreement was made in good faith and for the purpose of creating an enterprise agreement. It was also determined that the agreement was in accordance with the Fair Work Act and was certified as a single interest employee agreement. The court found that the agreement was appropriate for the employees it covered, and included appropriate dispute resolution mechanisms. Consequently, the court approved the enterprise agreement, thereby resolving the dispute in favour of the applicant. The final orders of the court were that the Structural Services Australia Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023 be approved and registered under the Fair Work Act.

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