Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 3353

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/3997)

BEACON INSTALLATION SERVICES (AUST) PTY LTD 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 BEACON INSTALLATION SERVICES (AUST) PTY LTD 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 BEACON INSTALLATION SERVICES (AUST) PTY LTD 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

In the matter of the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and BEACON Installation Services (Aust) Pty Ltd, along with the CFMEU (Victorian Construction and General Division), have applied for the approval of the Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023. This agreement pertains to employees who are not directly employed by Beacon but are instead employed by subcontractors who work on projects for Beacon. The CFMEU and Beacon are seeking to have the agreement approved as a "single-employer" agreement, despite the fact that it applies to employees who are not directly employed by Beacon.

The key legal issue before the Commission was whether the proposed agreement could be approved as a single-employer agreement, even though it covers employees who are not directly employed by the applicant employer. The Commission considered whether the proposed agreement met the criteria for a single-employer agreement, including whether the employees were sufficiently connected to the applicant employer and whether the agreement would provide appropriate protection for the employees. The Commission also considered whether the agreement was in the best interests of the employees and whether it met the other requirements of the Fair Work Act 2009.

After considering the evidence and submissions from the parties, the Commission found that the proposed agreement met the criteria for approval as a single-employer agreement. The Commission found that the employees were sufficiently connected to the applicant employer through their work on projects for Beacon, and that the agreement would provide appropriate protection for the employees. The Commission also found that the agreement was in the best interests of the employees and met the other requirements of the Fair Work Act. Accordingly, the Commission approved the proposed agreement as a single-employer agreement.

The Fair Work Commission approves the Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023 as a single-employer agreement between BEACON Installation Services (Aust) Pty Ltd and the CFMEU (Victorian Construction and General Division). The agreement will apply to employees who are not directly employed by Beacon but are instead employed by subcontractors who work on projects for Beacon. The agreement is approved for a period of three years, from 1 July 2020 to 30 June 2023. The Commission's decision is final and binding on the parties.

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