DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4518)

THE TRUSTEE FOR ORACLE STRUCTURES TRUST TAS ORACLE STRUCTURES PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS FORMWORK ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 15 APRIL 2021

Application for approval of THE TRUSTEE FOR ORACLE STRUCTURES TRUST Tas ORACLE STRUCTURES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the TRUSTEE FOR ORACLE STRUCTURES TRUST Tas ORACLE STRUCTURES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork 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 by the trustee for Oracle Structures Trust Tas, trading as Oracle Structures, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for approval of the Subcontractors Formwork Enterprise Agreement 2020-2023. The agreement in question was designed to regulate the employment terms and conditions for formwork subcontractors employed by Oracle Structures. The primary legal issues revolved around whether the agreement met the necessary statutory requirements for approval under the Fair Work Act 2009.

The Commission examined the agreement to determine if it complied with the procedural and substantive provisions of the Act. Procedurally, the agreement had to be made by genuine bargaining between the employer and the union. Substantively, the agreement had to address minimum entitlements, provide for a fair and efficient workplace, and not undermine the Act's protective purpose. The Commission assessed the evidence provided on the bargaining process and the contents of the agreement to ascertain whether these criteria were met.

After reviewing the evidence, the Commission concluded that the agreement was made through genuine bargaining and contained provisions that were fair and efficient. The agreement provided for minimum entitlements and did not undermine the protective purpose of the Act. Consequently, the Commission approved the Subcontractors Formwork Enterprise Agreement 2020-2023. The decision was made considering the nature of the work, the bargaining process, and the provisions of the agreement which met the statutory requirements 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