Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 3346

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/3927)

BARZEN PROJECTS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023

Building, metal and civil construction industries
COMMISSIONER MATHESON	SYDNEY, 28 SEPTEMBER 2022

Application for approval of the BARZEN PROJECTS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the BARZEN PROJECTS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery 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 5 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 case involved an application for the approval of a Subcontractors Carpentry and Joinery Enterprise Agreement between Barzen Projects Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The Fair Work Commission (FWC) was tasked with considering the application and making a determination on whether the agreement should be approved. The FWC needed to assess the agreement against the relevant criteria set out in the Fair Work Act 2009 (Cth). Specifically, the FWC had to determine if the agreement met the requirements of the act, including whether it was in the best interests of the employees and if it complied with the principles of good faith bargaining and fair terms and conditions of employment.

The key legal issues before the FWC were whether the agreement satisfied the criteria for approval as outlined in the Fair Work Act and if it was consistent with the principles of good faith bargaining. The FWC examined the content of the agreement, the bargaining process, and whether the agreement promoted the efficient operation of the workplace and the best interests of the employees. The FWC also considered if the agreement provided fair terms and conditions of employment and whether there were any provisions that could be deemed unfair or unreasonable.

In its reasoning, the FWC found that the agreement met the criteria for approval. The FWC noted that the agreement had been the result of good faith bargaining and contained terms that were fair and reasonable for the employees. The FWC was satisfied that the agreement promoted the efficient operation of the workplace and was in the best interests of the employees. The FWC also found that the agreement complied with the principles of good faith bargaining and provided fair terms and conditions of employment. Therefore, the FWC approved the Subcontractors Carpentry and Joinery Enterprise Agreement between Barzen Projects Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) for the period of 2020-2023.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established