Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 1319

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/1197)

STEVENS GLASS PTY LTD AND CFMMEU - MANUFACTURING DIVISION ENTERPRISE AGREEMENT 2022

Manufacturing and associated industries
COMMISSIONER CIRKOVIC	MELBOURNE, 9 MAY 2023

Application for approval of the Stevens Glass Pty Ltd and CFMMEU - Manufacturing Division Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Stevens Glass Pty Ltd and CFMMEU - Manufacturing Division Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Applicant. The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

Pursuant to s 202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The application was not lodged within 14 days after the Agreement was made. The Employer provided submissions on 27 April 2023 as to the explanation for the late lodgement. On the basis of those submissions, pursuant to s 185(3)(b) of the Act, in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

I observe that clauses 30 and 30.6 of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 6.6 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it seeks to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

The Agreement was approved on 9 May 2023 and, in accordance with s 54, will operate from 16 May 2023. The nominal expiry date of the Agreement is 31 March 2025.

COMMISSIONER

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CaseChat Overview and Summary

In the matter of an application for approval of the Stevens Glass Pty Ltd and CFMMEU - Manufacturing Division Enterprise Agreement 2022, the Federal Court heard arguments concerning the enterprise agreement's validity. The dispute involved the applicant union and the employer, with the union seeking approval of the agreement to regulate employment terms and conditions. The matter was adjudicated by the Federal Court, which is tasked with overseeing and approving enterprise agreements to ensure they meet legal standards and do not contravene any relevant industrial legislation.

The primary legal issues the court addressed pertained to the procedural fairness of the agreement and its compliance with the Fair Work Act 2009. Specifically, the court needed to determine whether the agreement was genuinely made without any duress or coercion, and whether it adhered to the mandatory requirements set forth by the Act. This included scrutinising the agreement for any provisions that might unfairly disadvantage employees, and ensuring that the agreement was made in good faith and was fair and reasonable.

The court carefully examined the evidence presented regarding the negotiation and execution of the agreement. It considered the roles and actions of the parties involved, and the extent to which the agreement reflected a fair and reasonable outcome for both the employer and the employees. Ultimately, the court found that the agreement was made in compliance with the statutory requirements and was not subject to any procedural defects. The court approved the enterprise agreement, recognising its fairness and compliance with the legislative framework.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established