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

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 318.

CaseChat Overview and Summary

The applicant, Fitzgerald Constructions Australia Pty Ltd, sought approval of an enterprise agreement with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), Victorian Construction and General Division. The dispute was heard in the Fair Work Commission, an Australian body responsible for ensuring compliance with employment laws. The main issue before the Commission was whether the proposed agreement complied with the statutory requirements for such agreements, particularly concerning procedural fairness and whether it contained mandatory terms as defined by the Fair Work Act 2009. The Commission needed to determine if the agreement was genuinely negotiated and if it met the standards set by the Act.

In examining the procedural fairness of the negotiation process, the Commission found that the applicant had engaged in genuine bargaining with the CFMEU. The evidence presented showed that discussions were conducted in good faith and that both parties had made reasonable efforts to reach an agreement. The Commission was satisfied that the process was fair and that the agreement was genuinely negotiated. Regarding the mandatory terms, the Commission considered whether the agreement included all necessary terms and if any were missing or incorrectly drafted. After thorough review, the Commission determined that the agreement met all the statutory requirements and contained all mandatory terms.

The Fair Work Commission approved the Fitzgerald Constructions Australia Pty Ltd and CFMEU (Victorian Construction and General Division) Builder Enterprise Agreement 2020-2023. The Commission concluded that the agreement was fairly negotiated and compliant with the Fair Work Act. The decision highlights the importance of procedural fairness in the negotiation process and the necessity for enterprise agreements to include all mandatory terms as stipulated by the Act. The approval of this agreement sets a precedent for similar agreements in the industry, ensuring that both employers and employees are protected under the law.

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