Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 2978

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/3473)

PARKINSON ASPHALTING PTY. LTD. T/AS PARKINSON ASPHALTING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS ASPHALT ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER MATHESON	SYDNEY, 30 AUGUST 2022

Application for approval of the PARKINSON ASPHALTING PTY. LTD. T/As PARKINSON ASPHALTING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Asphalt Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the PARKINSON ASPHALTING PTY. LTD. T/As PARKINSON ASPHALTING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Asphalt 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 6 September 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 PARKINSON ASPHALTING PTY. LTD. T/As PARKINSON ASPHALTING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Asphalt Enterprise Agreement 2020-2023. The dispute centred around the proposed terms and conditions of employment as outlined in the enterprise agreement between the employer and the union representing the workers. The Commission was tasked with ensuring that the agreement complied with the provisions of the Fair Work Act 2009.

The legal issues before the Commission included whether the proposed agreement met the requirements for 'good faith' bargaining and whether the terms and conditions within the agreement were fair and reasonable. The Commission also had to consider whether the agreement provided for a safety net of minimum terms and conditions and whether it complied with the provisions relating to the protection of vulnerable workers. Additionally, the Commission examined whether the agreement contained any terms that might be considered to be contrary to public policy.

The Fair Work Commission approved the enterprise agreement, finding that it was made in good faith and that the terms and conditions were fair and reasonable. The Commission determined that the agreement provided for a safety net of minimum terms and conditions and that it complied with all relevant provisions of the Fair Work Act 2009. The Commission also found that the agreement did not contain any terms that were contrary to public policy. The Commission noted that the agreement provided for appropriate protections for vulnerable workers and that it was in the best interests of the employees covered by the agreement.

The Commission made the enterprise agreement a registered agreement under the Fair Work Act 2009, effective from the date of registration. The agreement was to apply to all employees of PARKINSON ASPHALTING PTY. LTD. T/As PARKINSON ASPHALTING PTY LTD who are members of the CFMEU (Victorian Construction and General Division). The Commission's decision brought finality to the dispute and provided certainty for both the employer and the employees covered by the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established