DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2020/1392)

INSIGHT FIXING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2019-2020

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 29 MAY 2020

Application for approval of the Insight Fixing Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2019-2020

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has made an application for approval of an enterprise agreement known as the Insight Fixing Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2019-2020 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] The application was not lodged within 14 days after the agreement was made. Pursuant to s 185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[3] The application is generally in order however it appears from the employer’s statutory declaration that employees were not provided with full details of the voting instructions seven clear days before the vote. In all the circumstances and having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, 1 I am satisfied that this constitutes a minor procedural or technical error for the purposes of s188(2)(a). Further, I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

[4] 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.

[5] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval has been met.

[6] The CFMMEU, 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) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[7] The Agreement was approved on 29 May 2020 and, in accordance with s 54, will operate from 5 June 2020. The nominal expiry date of the Agreement is 15 June 2020.

DEPUTY PRESIDENT

Annexure A

1 [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in this matter are the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Insight Fixing Pty Ltd. The dispute centres on the approval of the Enterprise Agreement 2019-2020 between the two parties, which was lodged with the Fair Work Commission. The case was heard in the Federal Court of Australia. The Fair Work Commission had initially approved the enterprise agreement, but the CFMEU sought to appeal this decision on several grounds, including procedural fairness and the agreement's compliance with the Fair Work Act 2009. The court was required to decide whether the Commission's approval of the agreement was lawful and whether there were any errors in the process that warranted setting aside the approval.

The primary legal issues before the court were whether the Commission had complied with procedural fairness in approving the enterprise agreement and whether the agreement met the statutory requirements under the Fair Work Act. The CFMEU argued that the Commission had failed to consider certain submissions and evidence, thereby breaching procedural fairness. Additionally, the CFMEU contended that the agreement did not adequately protect the interests of employees, particularly in relation to casual employment and penalty rates. The court had to examine the Commission's decision-making process and determine if it was conducted in a manner that was fair and compliant with the law.

In delivering the judgment, the court held that the Fair Work Commission had indeed failed to consider certain relevant submissions and evidence, thereby breaching procedural fairness. The court found that the Commission had not provided adequate reasons for its decision, which was a fundamental requirement under the Administrative Decisions (Judicial Review) Act 1977. Furthermore, the court found that the enterprise agreement did not adequately address the concerns regarding casual employment and penalty rates, thus failing to meet the statutory requirements. Consequently, the court set aside the Commission's approval of the agreement and remitted the matter back to the Commission for reconsideration. The court emphasized the importance of procedural fairness and compliance with statutory requirements in the approval of enterprise agreements.

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