DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4226)

MULTIFORM CONSTRUCTIONS 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, 29 MARCH 2021

Application for approval of the MULTIFORM CONSTRUCTIONS 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 MULTIFORM CONSTRUCTIONS 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] Question 20 on the Form F17 indicates that on 27 February 2021 employees were notified verbally of the time and place of the vote, with the vote taking place 5 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.

[6] 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.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 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 was an application for the approval of the Subcontractors Formwork Enterprise Agreement 2020-2023 between Multiform Constructions Pty. Ltd. and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The applicant sought the Fair Work Commission's endorsement of the proposed agreement, which was intended to regulate the terms and conditions of employment for subcontractors in the formwork industry. The legal issues that arose required the court to examine whether the agreement was consistent with the Fair Work Act 2009 and met the requirements of the Fair Work (Registered Organisations) Act 2009. Specifically, the court had to consider whether the agreement provided for fair and reasonable terms, was free from any undue influence, and complied with all applicable legislative provisions.

Upon examining the agreement, the court found that it satisfied the necessary conditions for approval. The terms of the agreement were fair and reasonable, taking into account the interests of both parties and the broader workforce. The court noted that the agreement provided for a comprehensive set of terms and conditions, including provisions for wages, working hours, leave entitlements, and dispute resolution mechanisms. Furthermore, the court was satisfied that the agreement was not subject to any undue influence and was genuinely negotiated between the parties. The court also found that the agreement complied with the relevant legislative requirements and met the standards set out in the Fair Work Act 2009 and the Fair Work (Registered Organisations) Act 2009.

Having considered the evidence and arguments presented, the court approved the Subcontractors Formwork Enterprise Agreement 2020-2023. The court was satisfied that the agreement provided for fair and reasonable terms, was free from undue influence, and complied with the relevant legislative provisions. As a result, the agreement was endorsed and approved by the Fair Work Commission. The court's decision provides clarity and certainty for the parties involved and sets a precedent for future agreements in the formwork industry.

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