DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/136)

ESICON PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CLEANING ENTERPRISE AGREEMENT 2020-2023

Cleaning services
DEPUTY PRESIDENT MASSON	MELBOURNE, 8 FEBRUARY 2021

Application for approval of the ESICON PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Cleaning Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the ESICON PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Cleaning 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] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

[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] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[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 15 February 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Annexure A

1 [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application for approval of a proposed enterprise agreement between ESICON PTY LTD and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Cleaning Enterprise Agreement for the years 2020-2023. The application was lodged with the Fair Work Commission, which was tasked with determining whether the proposed agreement met the criteria for approval under the Fair Work Act 2009. The primary legal issue before the Commission was whether the proposed agreement complied with the requirements of section 232 of the Act, which mandates that an enterprise agreement must provide for a procedure for the resolution of disputes between the parties.

The Commission considered whether the proposed agreement adequately provided for the resolution of disputes. It examined the procedures outlined within the agreement and assessed their effectiveness and fairness. The Commission found that the proposed agreement included provisions for the resolution of disputes, which involved a two-step process. Firstly, it required the parties to attempt to resolve the dispute through negotiation. Secondly, if the dispute remained unresolved, it provided for the matter to be referred to an independent dispute resolution body. The Commission concluded that these provisions were sufficient to meet the requirements of section 232 of the Act, as they provided for a fair and effective process for resolving disputes between the parties.

The Fair Work Commission approved the proposed agreement, finding that it complied with the requirements of the Act. The Commission determined that the dispute resolution procedures were appropriate and provided for a fair and effective means of resolving disputes between the parties. The approval of the agreement was contingent upon certain conditions being met, including the agreement being registered with the Commission within the specified timeframe. The Commission's decision was based on a careful analysis of the provisions of the proposed agreement and the relevant statutory requirements. The outcome of the case ensures that the parties will have a legally binding agreement that includes a clear and fair process for resolving disputes.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established