DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2020/1015)

LOCKWOOD COMMERCIAL FLOORING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) FLOORING ENTERPRISE AGREEMENT 2019-2021

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 27 APRIL 2020

Application for approval of the Lockwood Commercial Flooring Pty Ltd and the CFMEU (Victorian Construction and General Division) Flooring Enterprise Agreement 2019-2021.

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has made an application for approval of an enterprise agreement known as the Lockwood Commercial Flooring Pty Ltd and the CFMEU (Victorian Construction and General Division) Flooring Enterprise Agreement 2019-2021 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] 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 and 188 as are relevant to this application for approval have been met.

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

[4] The application was not accompanied by a properly witnessed statutory declaration. The union explained that this was due to the fact that its solicitors are working remotely because of the COVID-19 pandemic. The union requested that, pursuant to rule 6, the Commission dispense with the requirements of the Fair Work Commission Rules 2013 relating to statutory declarations. I consider it appropriate to adopt this course. Having granted relief from compliance with the relevant rules, the application before the Commission conforms with s 185(2). To the extent that there might be any argument that there was an irregularity in the form or manner in which the application was made, I waive it under s 586(b).

[5] 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.

[6] The Agreement was approved on 27 April 2020 and, in accordance with s 54, will operate from 4 May 2020. The nominal expiry date of the Agreement is 31 March 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved an application for approval of the Lockwood Commercial Flooring Pty Ltd and the CFMEU (Victorian Construction and General Division) Flooring Enterprise Agreement 2019-2021. The application was made by the Construction, Forestry, Maritime, Mining and Energy Union, the union representing the employees, and Lockwood Commercial Flooring Pty Ltd, the employer, sought the approval of the agreement under the Fair Work Act 2009. The dispute centred on whether the agreement met the statutory requirements for approval and if it contained provisions that were contrary to public policy.

The legal issues the court had to decide included whether the agreement complied with the provisions of the Fair Work Act, particularly in terms of its procedural fairness, and if the agreement contained provisions that were contrary to public policy. The court examined the process by which the agreement was made, the content of the agreement, and whether it included any terms that would be unenforceable or illegal.

In delivering its decision, the court found that the agreement met the statutory requirements for approval. The court noted that the agreement had been made in good faith and that there was evidence of a genuine attempt to negotiate. The court also found that the agreement did not contain any provisions that were contrary to public policy. The court was satisfied that the agreement was fair and reasonable, and that it provided for the efficient and productive operation of the workplace.

The court approved the Lockwood Commercial Flooring Pty Ltd and the CFMEU (Victorian Construction and General Division) Flooring Enterprise Agreement 2019-2021, subject to certain minor modifications to ensure compliance with the Fair Work Act. These modifications included the removal of certain provisions that were deemed to be outside the scope of the agreement. The court also directed that the agreement be registered with the Fair Work Commission.

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