DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/282)

JS SITE STEEL PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CLADDING INSTALLATION ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 23 FEBRUARY 2021

Application for approval of the JS SITE STEEL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Cladding Installation Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the JS SITE STEEL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Cladding Installation 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 the 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 2 March 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 applicant union, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), sought approval of an enterprise agreement with JS Site Steel Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Cladding Installation Enterprise Agreement 2020-2023. The matter was heard by the Fair Work Commission in Australia. The primary dispute centred around whether the proposed agreement met the statutory requirements for approval under the Fair Work Act 2009, including compliance with the better off overall test and provisions regarding genuine bargaining and procedural fairness.

The court was required to determine if the agreement genuinely reflected the outcome of negotiations between the parties and whether it met the better off overall test. This involved assessing the overall benefits and detriments of the proposed agreement to the employees covered by it. Additionally, the court had to examine whether the agreement contained provisions that were inconsistent with the Fair Work Act, such as those that might undermine the rights of employees or the purpose of the Act.

The Fair Work Commission found that the agreement did not meet the better off overall test. The court held that the proposed conditions, particularly those relating to pay rates and conditions for cladding installers, did not result in a sufficient overall benefit for the employees. Furthermore, the court found that the agreement contained provisions that were inconsistent with the Fair Work Act, including clauses that could potentially undermine the rights of employees. As a result, the court rejected the application for approval of the enterprise agreement.

The Fair Work Commission ordered that the application for approval of the JS Site Steel Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Cladding Installation Enterprise Agreement 2020-2023 be dismissed. The decision underscored the importance of ensuring that enterprise agreements provide genuine benefits to employees and comply with the statutory requirements set out in the Fair Work Act.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

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Legal Principle Established