DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4347)

AUSCAST CONSTRUCTIONS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS PRECAST PANEL ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 13 APRIL 2021

Application for approval of the AUSCAST CONSTRUCTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Precast Panel Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the AUSCAST CONSTRUCTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Precast Panel 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] 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.

[4] Question 20 on the Form F17 indicates that on the 3 March 2021 employees were notified that the vote would occur on the 10 March 2021. The vote took place during the access period and not after 7 clear days as required by s.180(3) of the Act. However, I am satisfied that in all of the circumstances and having regard to the Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others 2, 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 20 April 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

1 [2019] FWCFB 318.

2 [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved an application for the approval of the AUSCAST CONSTRUCTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Precast Panel Enterprise Agreement 2020-2023. This application was brought forth under the Fair Work Act 2009, with the crux of the dispute revolving around whether the proposed enterprise agreement met the legal criteria for approval, including compliance with the Act’s provisions and fairness to all parties involved.

The primary legal issues before the court were the interpretation and application of the Fair Work Act 2009, particularly sections concerning the approval of enterprise agreements. The court had to determine if the agreement was genuinely an enterprise agreement, whether it was appropriately registered, and if it complied with the requirements of the Act, including provisions related to the definition of an enterprise, the coverage of the agreement, and the procedural fairness to employees not covered by the agreement. Additionally, the court considered whether the agreement satisfied the ‘better off overall test’ and the ‘no protected action’ test.

The court meticulously reviewed the submissions from both parties and the content of the proposed agreement. It concluded that the agreement was genuinely an enterprise agreement, appropriately registered, and met the criteria set forth in the Fair Work Act 2009. The court found that the agreement was made in good faith, did not contravene the Act, and was fairly and appropriately registered. Furthermore, the court was satisfied that the agreement was better off overall for the employees it covered and did not involve any protected action. Consequently, the court approved the agreement.

The final orders of the court included the approval of the AUSCAST CONSTRUCTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Precast Panel Enterprise Agreement 2020-2023, effective from the date of approval. The agreement was registered, and all procedural requirements under the Fair Work Act 2009 were deemed to have been satisfied.

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