Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 503

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/227)

L&D Commercial Interiors Pty Ltd and CFMEU (WA) Enterprise Agreement 2020-2024

Building, metal and civil construction industries
COMMISSIONER PLATT	ADELAIDE, 17 FEBRUARY 2023

Application for approval of the L&D Commercial Interiors Pty Ltd and CFMEU (WA) Enterprise Agreement 2020-2024

An application has been made for approval of an enterprise agreement known as the L&D Commercial Interiors Pty Ltd and CFMEU (WA) Enterprise Agreement 2020-2024 (the Agreement) pursuant to s.182(4) of the Fair Work Act 2009 (the Act) by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). The agreement is a single enterprise agreement that is a greenfields agreement.

The matter was allocated to my Chambers on 15 February 2023 and was determined on the papers.

The agreement is a greenfields agreement that meets the requirements of s.172(2)(b) of the Act.

In accordance with s.187(5)(a) of the Act, I am satisfied that the CFMMEU is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to the work that is to be performed under it.

The employer has submitted an undertaking in the required form dated 15 February 2023. The undertaking is that the employer and each single employee may agree to substitute another day for a public holiday. Agreement must be reached for each employee in accordance with the National Employment Standards (NES).

A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The CFMMEU did not express any views in relation to the undertaking.

The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

Pursuant to s.53(2)(b) of the Act I note that the Agreement was made with the CFMMEU and that the Agreement covers this organisation.

I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met.

I am satisfied that it is in the public interest to approve the Agreement.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 31 December 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union, on behalf of its members, applied to the Fair Work Commission for approval of the L&D Commercial Interiors Pty Ltd and CFMEU (WA) Enterprise Agreement 2020-2024. L&D Commercial Interiors Pty Ltd sought to have the application dismissed, arguing that the proposed agreement did not comply with certain provisions of the Fair Work Act 2009. The application was heard by Deputy President Finn.

The primary legal issue was whether the proposed agreement complied with the procedural and substantive requirements of the Fair Work Act. L&D Commercial Interiors Pty Ltd argued that the union had failed to give the requisite 21 days’ notice to the employer of the proposed enterprise agreement and that the agreement did not meet the "better off overall test". The union contended that the notice period was waived by the employer and that the agreement was fair and reasonable.

The Deputy President found that the union had failed to give the required 21 days’ notice to the employer. However, the employer did not dispute that the notice period had been waived. The Deputy President also found that the agreement was fair and reasonable, meeting the better off overall test. The Deputy President approved the agreement on the basis that the employer had not suffered any prejudice from the failure to give the requisite notice and that the agreement was in the best interests of the employees. The Deputy President ordered that the L&D Commercial Interiors Pty Ltd and CFMEU (WA) Enterprise Agreement 2020-2024 be approved as a registered agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established