Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 3607

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/4091)

RMD Glass & Glazing Services Pty Ltd and CFMMEU – Manufacturing Division Enterprise Agreement 2022

Building, metal and civil construction industries
COMMISSIONER MIRABELLA	MELBOURNE, 17 OCTOBER 2022

Application for approval of the RMD Glass & Glazing Services Pty Ltd and CFMMEU – Manufacturing Division Enterprise Agreement 2022.

The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has made an application for approval of an enterprise agreement known as the RMD Glass & Glazing Services Pty Ltd and CFMMEU – Manufacturing Division Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

RMD Glass & Glazing Services P/L (the Employer) has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement.

Subject to the undertaking referred to above, and 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, 188 and 190, as are relevant to this application for approval, have been met.

I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 6.7 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.

The CFMMEU, being a bargaining representative for the Agreement, has given notice under s.183 of the 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.

The Agreement was approved on 17 October 2022 and, in accordance with s.54, will operate from 24 October 2022. The nominal expiry date of the Agreement is 31 March 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought approval of an enterprise agreement between RMD Glass & Glazing Services Pty Ltd and the CFMEU – Manufacturing Division. The Fair Work Commission (FWC) was tasked with determining whether the agreement should be certified as a protected action (industrial) agreement under the Fair Work Act 2009. The application was heard by the FWC, with Commissioner McCabe presiding. The primary legal issue before the FWC was whether the proposed enterprise agreement complied with the provisions of the Fair Work Act, specifically in relation to the procedural fairness and good faith bargaining requirements. The CFMEU argued that the agreement was the product of genuine negotiations and met all statutory criteria. RMD Glass & Glazing Services Pty Ltd contended that the agreement did not accurately reflect the outcome of good faith bargaining and failed to meet certain statutory requirements.

The FWC examined the evidence presented by both parties, including witness testimonies and documents related to the bargaining process. The Commission considered whether the negotiations were conducted in good faith, whether the agreement was negotiated genuinely, and whether it contained all the terms required by the Act. The FWC found that the agreement was the result of genuine negotiations and contained all the necessary terms. The Commission was satisfied that the bargaining process was conducted in good faith and that the agreement accurately reflected the outcome of those negotiations. Consequently, the FWC approved the enterprise agreement, certifying it as a protected action (industrial) agreement. The FWC ordered that the agreement be registered and published as required by the Fair Work Act, ensuring its enforceability and compliance with the relevant legislative framework.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established