Construction, Forestry, Maritime, Mining and Energy Union
[2021] FWCA 57
•6 JANUARY 2021
| [2021] FWCA 57 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Construction, Forestry, Maritime, Mining and Energy Union
(AG2020/3951)
CONSTRUCTION CONTRACT LABOUR (VIC) PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS LABOUR HIRE ENTERPRISE AGREEMENT 2020-2023
Building, metal and civil construction industries | |
DEPUTY PRESIDENT MASSON | MELBOURNE, 6 JANUARY 2021 |
Application for approval of the CONSTRUCTION CONTRACT LABOUR (VIC) PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Labour Hire Enterprise Agreement 2020-2023.
[1] An application has been made for approval of an enterprise agreement known as the CONSTRUCTION CONTRACT LABOUR (VIC) PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Labour Hire 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 (NERR) was different to the title clause in the proposed Agreement. Additionally, question 19 of the Form F17 provides that the last NERR was given to employees by hand on 12 November 2020 however, question 25.1 of the Form F17 indicates that voting commenced on 3 December 2020. Therefore, voting commenced on the 21st day after the last NERR was provided to employees, rather than 21 days after per s. 181(2) of the Act. Finally, question 20 of the Form F17 indicates that employees were not notified of the time voting would take place as “the time of the vote could not be specified as it would be dependent on when each of the employer representatives could arrive at each respective site”, therefore, it is not clear if and how employees were informed of the timeof vote per s. 180(3)(a) 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, 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 13 January 2021. The nominal expiry date of the Agreement is 30 June 2023.
DEPUTY PRESIDENT
1 [2019] FWCFB 318.
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