Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 2332

[2023] FWCA 2332

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/2430)

TOGA NOMINEES PTY LTD T/A ADVANCE CABINET WORKS AND CFMEU – MANUFACTURING DIVISION ENTERPRISE AGREEMENT 2023-2025

Building services
COMMISSIONER MIRABELLA	MELBOURNE, 27 JULY 2023

Application for approval of the Toga Nominees Pty Ltd t/a Advance Cabinet Works and CFMEU – Manufacturing Division Enterprise Agreement 2023-2025.

1. The Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU) has made an application for approval of an enterprise agreement known as the Toga Nominees Pty Ltd t/a Advance Cabinet Works and CFMEU – Manufacturing Division Enterprise Agreement 2023-2025 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the FW Act). The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the FW Act that commenced operation on 6 June 2023.

1. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. Question 18 of the Form F17A provides that the notification time for the Agreement was 13 February 2023.

1. Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. Question 26.2 of the Form F17A provides that the Agreement was made on 6 July 2023.

1. On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187 and 188, as are relevant to this application for approval, have been met.

1. The Agreement contained a typographical error regarding the trading name of the employer, Toga Nominees Pty Ltd t/a Advance Cabinet Works. The CFMMEU has requested that the Commission exercise its discretion to correct this error pursuant to s.586 of the FW Act. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the FW Act. On 19 July 2023, the CFMMEU filed the attached amended version of the Agreement correcting the error identified.

1. I observe that clause 31.1(a) (annual leave) is likely to be inconsistent with the National Employment Standards (the NES). However, noting clause 6.8 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The CFMMEU, being a bargaining representative for the Agreement, has given notice under s.183 of the FW Act that it wants the Agreement to cover it. In accordance with s.201(2) and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

1. The Agreement was approved on 27 July 2023 and, in accordance with s.54, will operate from 3 August 2023. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

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