Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 3395

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/3998)

S.J. CORDELL PTY. LTD. AS TRUSTEE FOR S & J CORDELL FAMILY TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023

Building, metal and civil construction industries
COMMISSIONER MATHESON	SYDNEY, 3 October 2022

Application for approval of the S.J. CORDELL PTY. LTD. AS TRUSTEE FOR S & J CORDELL FAMILY TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the S.J. CORDELL PTY. LTD. AS TRUSTEE FOR S & J CORDELL FAMILY TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings 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 10 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

The matter before the Fair Work Commission involved an application for the approval of the S.J. Cordell Pty. Ltd. as Trustee for the S & J Cordell Family Trust and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023. The parties were engaged in a dispute concerning the terms and conditions of employment for subcontractors within the architectural features and fittings sector in Victoria. The Commission was tasked with determining whether the proposed agreement met the necessary criteria for approval under the Fair Work Act.

The central legal issues before the Commission were whether the agreement complied with the requirements set out in the Fair Work Act and the Fair Work Regulations, particularly focusing on the procedural fairness, good faith bargaining, and the overall fairness of the terms. Additionally, the Commission had to assess if the agreement appropriately balanced the interests of both the employer and the employees, ensuring it did not unfairly disadvantage either party.

In delivering its decision, the Commission meticulously examined the bargaining process, the terms of the agreement, and the evidence provided by both parties. The Commission found that the agreement had been reached through a process of genuine and good faith bargaining, with all procedural requirements being appropriately followed. The terms of the agreement were considered to be fair and reasonable, taking into account the economic and operational context of the industry. The Commission concluded that the agreement met all statutory criteria for approval and did not contain any terms that were contrary to public interest or that failed to protect the interests of the employees.

The Fair Work Commission approved the S.J. Cordell Pty. Ltd. as Trustee for the S & J Cordell Family Trust and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023, effective from the date of the decision. The approval ensures that the terms of the agreement will govern the employment conditions for the specified period, providing a clear and legally binding framework for the parties involved.

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