Construction, Forestry, Maritime, Mining and Energy Union

[2021] FWCA 989

[2021] FWCA 989

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/307)

FITZGERALD CONSTRUCTIONS AUSTRALIA PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) BUILDER ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 23 FEBRUARY 2021

Application for approval of the FITZGERALD CONSTRUCTIONS AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Builder Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the FITZGERALD CONSTRUCTIONS AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Builder 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] Question 20 on the Form F17 indicates that the employer notified the relevant employees of the voting details on 2 February 2021. Question 26 on the Form F17 indicates that the date that voting for the Agreement commenced was 9 February 2021, therefore the 7-day access period started on the first full day after 1 February 2021. As such, the employer did not notify the relevant employees by the start of the access period in accordance with s.180(3) of the Act. However, submissions were made that the “employer was not aware that the day of distributing the documents and notification of the vote would not count as the first day of the 7 day access period” and that “the employer distributed the documents and notified their employees at 7:00am prior to starting work on 2/02/2021.” Furthermore, Question 26 on the Form F17 indicates that at the time of the vote, 35 employees were covered by the Agreement, and all 35 of these employees cast a valid vote to approve the Agreement. In the circumstances, and having regard to Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others 1, I am satisfied that 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] 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.

[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.

COMMISSIONER

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 1   [2019] FWCFB 318.