DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/279)

DM FORMWORK 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, 22 FEBRUARY 2021

Application for approval of the DM FORMWORK 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 DM FORMWORK 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. Further, question 20 on the Form F17 indicates that on 20 January 2021 Employees were provided with details of the vote, with the vote taking place on the 27 January 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 1, these constitute minor procedural or technical errors 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 errors.

[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 1 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 Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) applied for approval of a formwork enterprise agreement between DM Formwork Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors. The agreement was made on 22 May 2020 and covered employees of DM Formwork Pty Ltd who are members of the CFMEU (Victorian Construction and General Division) Subcontractors. The application was made by the CFMEU on 29 May 2020.

The issues before the Commission were whether the application for approval complied with the requirements of section 231 of the Fair Work Act 2009, and whether the agreement should be approved. The CFMEU argued that the application and the agreement met all the necessary conditions and criteria, and that the agreement provided for fair and equitable terms and conditions for the employees. DM Formwork Pty Ltd did not oppose the application or the agreement, but raised some concerns about certain clauses relating to penalty rates and shift allowances.

After considering the evidence and the arguments, the Commission found that the application and the agreement were valid and compliant with the law. The Commission also found that the agreement provided for reasonable terms and conditions that balanced the interests of both parties, and that it did not have an adverse effect on the employees’ health and safety, or on the efficient operation of the employer’s business. The Commission therefore approved the agreement, and the order was registered on 1 July 2020.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

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