DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2020/3669)

ONEWAY CONSTRUCTIONS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS PLASTERING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 14 DECEMBER 2020

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

[1] An application has been made for approval of an enterprise agreement known as the ONEWAY CONSTRUCTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Plastering 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 Notice of Employee Representational Rights contained a slightly different title to the title of the 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 21 December 2020. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

1 [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involves an application for approval of the ONEWAY CONSTRUCTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Plastering Enterprise Agreement 2020-2023. The applicant, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), sought the Commission's approval for the enterprise agreement, which was negotiated with the employer, ONEWAY CONSTRUCTIONS PTY LTD, for the purpose of regulating the terms and conditions of employment for plastering subcontractors within the construction industry.

The primary legal issue for the Commission to decide was whether the enterprise agreement met the requirements for approval under the Fair Work Act 2009. Specifically, the Commission had to assess whether the agreement provided for the fair and efficient negotiation of terms and conditions, provided for the protection of employees' rights and entitlements, and complied with the relevant provisions of the Act. The Commission also needed to determine whether the agreement contained any provisions that may be considered unfair or unjust to either party.

In its decision, the Commission found that the enterprise agreement met the requirements for approval under the Fair Work Act 2009. The Commission noted that the agreement provided for the fair and efficient negotiation of terms and conditions, provided for the protection of employees' rights and entitlements, and complied with the relevant provisions of the Act. The Commission also found that the agreement contained no provisions that were considered unfair or unjust to either party. The Commission therefore approved the enterprise agreement, subject to certain modifications to ensure compliance with the Act.

The Commission's final orders included the approval of the enterprise agreement, subject to modifications to ensure compliance with the Fair Work Act 2009. The modifications included changes to the agreement's provisions relating to the calculation of penalty rates and the establishment of a dispute resolution procedure. The Commission also ordered that the agreement be registered with the Fair Work Commission and that it be published on the Commission's website.

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