DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4492)

TOP KNOT CARPENTRY 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, 15 APRIL 2021

Application for approval of the TOP KNOT CARPENTRY 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 TOP KNOT CARPENTRY 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 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 22 April 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 Fair Work Commission involved an application for the approval of the TOP KNOT CARPENTRY SERVICES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023. The applicant, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), sought to have the agreement approved as a safety net agreement under the Fair Work Act 2009. The respondent, TOP KNOT CARPENTRY SERVICES PTY LTD, did not oppose the application but sought clarification on certain aspects of the agreement.

The primary legal issues that the Commission was required to address involved the interpretation and compliance of the proposed agreement with the relevant provisions of the Fair Work Act 2009. Specifically, the Commission needed to ensure that the agreement met the safety net requirements, did not adversely affect employees' rights or entitlements, and adhered to the principles of procedural fairness. Additionally, the Commission had to consider whether the agreement was appropriate for registration as a safety net agreement.

In its decision, the Commission carefully examined the proposed agreement clause by clause, considering the balance between the rights and interests of the employees and the employer. The Commission found that the agreement generally complied with the safety net provisions and did not adversely affect the employees' rights or entitlements. The Commission also determined that the agreement was procedurally fair and appropriate for registration as a safety net agreement. The Commission provided clarifications on certain aspects of the agreement to ensure that it met the legislative requirements.

The Fair Work Commission approved the TOP KNOT CARPENTRY SERVICES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023 as a safety net agreement. The Commission's decision provided the necessary clarifications to ensure that the agreement met the legislative requirements and was appropriate for registration. The approval of the agreement ensures that the employees will receive the minimum entitlements provided under the Fair Work Act 2009, while also allowing for flexibility in the terms of employment between the parties.

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