Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 3590

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/4185)

AUSTRAL RIGGING PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023

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

Application for approval of the AUSTRAL RIGGING PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the AUSTRAL RIGGING PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023 (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.

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.

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 Construction, Forestry, Maritime, Mining and Energy Union 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) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 October 2022. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the court involved an application by the Australian Building and Construction Commission (ABCC) for the approval of the AUSTRAL RIGGING PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023. The matter was heard in the Fair Work Commission (FWC) and revolved around the procedural fairness and the proper application of the Fair Work Act 2009 (Cth).

The central legal issues before the FWC were whether the ABCC had acted in accordance with the principles of natural justice and procedural fairness when it conducted its review of the enterprise agreement and whether the agreement complied with the requirements of the Fair Work Act. Specifically, the court had to consider if the ABCC provided the parties with a fair opportunity to respond to the concerns raised about the agreement and whether the agreement itself was consistent with the provisions of the Fair Work Act.

In reaching its decision, the FWC examined the procedures followed by the ABCC during its review process. The FWC concluded that the ABCC had not afforded the parties procedural fairness by failing to provide adequate notice of the issues it intended to raise and by not giving the parties a reasonable opportunity to respond. Consequently, the FWC found that the ABCC's review process was flawed. Regarding the substantive compliance of the agreement, the FWC determined that, despite the procedural shortcomings, the agreement itself was not inconsistent with the Fair Work Act. The FWC found that the agreement was fair and reasonable and met the necessary standards under the Act.

The FWC approved the AUSTRAL RIGGING PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023, subject to certain conditions and modifications to address the procedural deficiencies identified during the review process. The ABCC's application was therefore granted, but with the stipulation that the ABCC and the parties would need to work together to remedy the procedural issues in a manner consistent with the principles of natural justice and procedural fairness.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established