Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 3416

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/4055)

JANS CONTRACTING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023

Building, metal and civil construction industries
COMMISSIONER MATHESON	SYDNEY, 7 OCTOBER 2022

Application for approval of the JANS CONTRACTING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the JANS CONTRACTING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage 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 title of the Agreement in the Notice of Employee Representational Rights was different to the title clause in the proposed Agreement. However, I am satisfied that in all of the circumstances and having regard to 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)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

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 14 October 2022. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought approval of the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023, entered into with JANS CONTRACTING PTY LTD. The Fair Work Commission was the court before which the matter was heard.

The central legal issue before the Commission was whether the agreement met the statutory requirements for approval under the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement contained terms that were "not contrary to public policy" and whether it had been genuinely agreed upon by the parties.

The Commission found that the agreement contained no terms that were contrary to public policy and that the parties had genuinely entered into the agreement. The Commission also considered the process by which the agreement was negotiated and concluded that it was conducted in good faith and with proper regard for the interests of all parties. As such, the Commission approved the agreement, finding that it met the necessary statutory requirements.

The final order of the Commission was that the Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023, between the CFMEU and JANS CONTRACTING PTY LTD, be approved and registered under the Fair Work Act 2009.

Construction, Forestry, Maritime, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established