DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/305)

HARRIS FAMILY TRUST (THE TRUSTEE FOR) TAS HARRIS CONSTRUCTIONS (VIC) PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CARPENTRY AND JOINERY ENTERPRISE AGREEMENT 2020-2023

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

Application for approval of the HARRIS FAMILY TRUST (THE TRUSTEE FOR) Tas HARRIS CONSTRUCTIONS (VIC) PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the HARRIS FAMILY TRUST (THE TRUSTEE FOR) Tas HARRIS CONSTRUCTIONS (VIC) PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery 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 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.

[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.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 318.

CaseChat Overview and Summary

In the case of the Application for approval of the Harris Family Trust (the trustee for) Tas Harris Constructions (Vic) Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023, the Fair Work Commission (FWC) was asked to consider the approval of an enterprise agreement (EA) proposed between the employer and the union. The Trust, operating as Tas Harris Constructions, and the union, specifically the CFMEU (Victorian Construction and General Division), sought to have the EA approved. The dispute arose from the negotiation and content of the EA, which covered terms and conditions of employment for subcontractors within the carpentry and joinery sectors in Victoria.

The legal issues before the FWC involved assessing whether the EA met the criteria for approval under the Fair Work Act 2009. This required the FWC to consider if the EA provided for a genuine bargain between the parties, if it was made in good faith, if it contained the essential elements required by the Act, and if it was otherwise fair and reasonable. The union argued that the EA was a genuine and fair agreement that provided for the fair representation of employees' interests, while the employer raised concerns about certain provisions within the EA that could potentially impact their business operations.

The FWC evaluated the submissions from both parties and examined the content of the EA. The FWC found that the EA contained all essential elements and was made in good faith. It concluded that the terms and conditions of the EA were fair and reasonable, providing for a balance of interests between the employer and the employees. The FWC also noted that the union had genuinely represented the interests of its members during the negotiation process. As a result, the FWC approved the EA.

The FWC's final order was that the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023 was approved and would be registered with the Fair Work Commission, effective from the date of the decision. The approval of the EA means that the terms and conditions set out in the agreement will apply to the relevant employees and employers covered by the agreement.

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