Construction, Forestry, Maritime, Mining and Energy Union

[2020] FWCA 2017

[2020] FWCA 2017

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2020/1002)

CORE BUILDING SERVICES (ACT) PTY LTD AND CFMEU ACT ENTERPRISE AGREEMENT 2020

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 21 APRIL 2020

Application for approval of the Core Building Services (ACT) Pty Ltd and CFMEU ACT Enterprise Agreement 2020

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

[2] The CFMMEU has drawn the Commission’s attention to an error in the name of the employer in the text of the Agreement. Clause 5 of the Agreement states that it shall be binding on the ‘Company’, the CFMMEU and relevant employees. ‘Company’ is defined in clause 4 of the Agreement as ‘Core Building Group Pty Ltd’ (CBG). The correct name of the employer in question is in fact Core Building Services (ACT) Pty Ltd (CBS). The union submitted that this was a simple and obvious mistake which does not pose an obstacle to the Agreement’s approval. I agree. The F16 application correctly identifies CBS as the employer of employees covered by the Agreement. The employer’s F17 statutory declaration, sworn by Mr Ryan Cappello, also identifies CBS as the employer, as does the Notice of Employee Representational Rights. The F17 confirms that the employees who voted to approve the Agreement were employees of CBS.

[3] It is clear that the reference to CBG in the text of the Agreement is a mistake, and that the intended reference was to CBS. In the circumstances, it can safely be inferred that employees understood that the Agreement was one which covered them in their employment with their actual employer, CBS. The written text of the Agreement simply did not reflect the actual proposed agreement (see RFFWUI v Hungry Jack’s Pty Ltd[2020] FWCFB 1693 at [58] and [59]).

[4] The CFMMEU submitted that, to the extent the error in the text of the Agreement caused the Commission to have a concern as to whether the Agreement had been genuinely agreed for the purpose of s 186(2)(a), the error was a technical one occasioning no disadvantage to employees, of the kind amenable to redress through s 188(2) of the Act. This section provides that an enterprise agreement has been ‘genuinely agreed’ if the Commission is satisfied that it would have been ‘genuinely agreed’, but for a minor procedural or technical error in relation to the requirements mentioned in s 188(1)(a) or (b), or the requirements of ss 173 and 174, and the employees were not likely to have been disadvantaged by it. However, because it is very clear that the actual and only employer is CBS, and that the employees are employees of CBS, I do not have a concern that the Agreement was not genuinely agreed. I am satisfied that the employer (CBS) complied with the provisions referred to in s 188(1)(a), that the employees of CBS ‘made’ the Agreement in accordance with s 182(1), and that there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.

[5] The union submitted that the Commission should approve the Agreement containing the correct name of the employer. It asked the Commission to allow a correction to the Agreement under s 586(a) and sought leave to file a corrected copy. Section 586 states that the Commission may ‘allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate’. In ANMF v Domain Aged Care (Qld) Pty Ltd [2019] FWCFB 1716, the Full Bench majority accepted that, while the power to allow a correction to an agreement under s 586 should be used sparingly, obvious errors could be rectified (at [52] and [54]). In my view the present matter presents a case of obvious error in the Agreement and it is appropriate to allow its correction.

[6] 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 has been met.

[7] 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.

[8] The Agreement was approved on 21 April 2020 and, in accordance with s 54, will operate from 28 April 2020. The nominal expiry date of the Agreement is 30 June 2020.

DEPUTY PRESIDENT

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