Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 2933

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/3436)

IMPERIAL STONE INDUSTRIES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Stonemasons Enterprise Agreement 2020-2023

Building, metal and civil construction industries
COMMISSIONER MATHESON	SYDNEY, 26 AUGUST 2022

Application for approval of the IMPERIAL STONE INDUSTRIES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Stonemasons Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the IMPERIAL STONE INDUSTRIES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Stonemasons 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 2 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

In the Federal Court of Australia, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought approval for a subcontractor stonemasons enterprise agreement between Imperial Stone Industries Pty Ltd and the CFMEU (Victorian Construction and General Division). The application was made under section 232 of the Fair Work Act 2009, requesting the Fair Work Commission to approve the agreement as a registered agreement. The nature of the dispute involved the terms and conditions of employment for stonemasons engaged by Imperial Stone Industries, including wages, hours of work, and other employment conditions.

The court had to decide whether the agreement met the requirements of section 235 of the Fair Work Act, which outlines the criteria for the approval of an enterprise agreement. This included assessing whether the agreement provided for fair and reasonable terms and conditions, and whether it complied with the provisions of the Act. The court also considered the process by which the agreement was made, including whether there was genuine bargaining between the parties and whether the agreement was in the best interests of the employees covered by it.

In delivering the judgment, the court found that the agreement did meet the criteria for approval. The court was satisfied that the agreement provided for fair and reasonable terms and conditions for the employees, and that it complied with the provisions of the Act. The court also found that the agreement was the product of genuine bargaining between the parties, and that it was in the best interests of the employees. The court noted that the agreement included provisions for minimum wages, penalty rates, and other employment conditions that were fair and reasonable.

As a result of the court's decision, the Fair Work Commission was directed to approve the subcontractor stonemasons enterprise agreement as a registered agreement. The agreement will now be in effect from 1 January 2021 until 31 December 2023, unless terminated earlier in accordance with the terms of the agreement or the Act. The decision provides certainty for the employees covered by the agreement, as well as for the employer and the union.

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