Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 1846

[2023] FWCA 1846

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/1924)

KAT CORP CONSTRUCTIONS PTY LTD/ CFMEU COLLECTIVE AGREEMENT 2O19-2O23

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 26 JUNE 2023

Application for approval of the Kat Corp Constructions Pty Ltd/ CFMEU Collective Agreement 2019-2023

1. An application has been made for approval of an enterprise agreement known as the Kat Corp Constructions Pty Ltd/ CFMEU Collective Agreement 2019-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Construction, Forestry, Maritime, Mining and Energy Union. The Agreement is a single enterprise agreement.

1. 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.

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 Fair Work 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 Fair Work 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 17 of the Form F17 provides that the notification time for the Agreement was 1 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 Fair Work 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 25.2 of the Form F17 provides that the Agreement was made on 8 June 2023.

1. The notice of employee representational rights (NERR) lodged with the Commission includes the Employer’s name, authority to sign and date that the NERR was provided to employees. The NERR was therefore not in its prescribed form as required by s. 174(1A) of the Act. As the notification time for the Agreement was before 6 June 2023, I am satisfied that in all of the circumstances and having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[1], this constitutes a minor procedural or technical error for the purpose of s.188(2) of the Act, as it was just before 6 June 2023. Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 3 July 2023. The nominal expiry date of the Agreement is 31 December 2023.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318.

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