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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FWCA 2017
Decision Date: 21 APRIL 2020

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union sought approval of a proposed enterprise agreement with Core Building Services (ACT) Pty Ltd. The union argued that the agreement met the legal requirements for approval, while the company argued that certain provisions should be rejected due to non-compliance with the Fair Work Act 2009. The issues before the Commission were whether the agreement contained any provisions that were not reasonably capable of promoting the objects of the Act, and whether it complied with the relevant provisions of the Act, including the requirement for the agreement to include a dispute resolution process. The Commission found that the agreement was generally in compliance with the Act and its objects, but that certain provisions required modification to ensure compliance. The union and the company were directed to negotiate changes to the agreement to address these issues. The Commission then approved the agreement in its modified form, subject to the parties' ability to finalise the necessary changes. The final orders included approval of the modified agreement and a direction for the parties to negotiate and finalise the changes within a specified timeframe.

Orders