Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 3298

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/3859)

360 PRESSURE CLEANING PTY LTD T/As 360 PRESSURE CLEANING 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, 26 SEPTEMBER 2022

Application for approval of the 360 PRESSURE CLEANING PTY LTD T/As 360 PRESSURE CLEANING 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 360 PRESSURE CLEANING PTY LTD T/As 360 PRESSURE CLEANING 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 3 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 by 360 Pressure Cleaning Pty Ltd trading as 360 Pressure Cleaning, together with the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division), for the approval of a proposed enterprise agreement. The application was heard in the Fair Work Commission, which is Australia's independent national workplace relations tribunal. The dispute centred around whether the proposed enterprise agreement, which was intended to govern the employment terms and conditions of subcontractors working in the architectural features and fittings sector for 360 Pressure Cleaning, met the legal requirements for approval.

The central legal issues before the court involved assessing whether the proposed agreement complied with the provisions of the Fair Work Act 2009, particularly in terms of whether it met the prerequisites for an enterprise agreement under the Act. This included considerations of whether the agreement was made by the employer and relevant employee representatives, whether it contained the required terms, and whether the agreement had been certified as meeting the applicable standards. Furthermore, the court needed to determine whether the agreement provided for fair and reasonable terms and conditions, and whether it was in compliance with the overarching principles of good faith bargaining and procedural fairness.

The court evaluated the application and the proposed agreement in detail, considering submissions from both parties and relevant legislative provisions. It found that the agreement contained all the necessary terms, and that the process leading up to its creation was procedurally fair. The court was satisfied that the agreement provided for fair and reasonable terms and conditions, and that it adhered to the principles of good faith bargaining. Consequently, the court approved the proposed enterprise agreement, determining that it met the legal requirements for approval.

The final orders of the court were that the 360 Pressure Cleaning Pty Ltd T/As 360 Pressure Cleaning and the CFMEU (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023 be approved as a registered agreement under the Fair Work Act 2009. This decision provided legal certainty for the parties involved, allowing the agreement to govern the employment terms and conditions of subcontractors within the specified sector.

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