Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 2911

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/3443)

AUSTRALASIAN STONE PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS TILELAYERS ENTERPRISE AGREEMENT 2020-2023

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

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

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

The matter involved an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for the approval of the Australasian Stone Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Tilelayers Enterprise Agreement 2020-2023. The decision was handed down by the Fair Work Commission (FWC) in Australia. The primary focus of the case was to determine whether the proposed enterprise agreement met the criteria for approval under the Fair Work Act 2009. The FWC had to consider whether the agreement complied with the statutory requirements for enterprise agreements, including whether it contained the necessary minimum terms and conditions, and whether it was made in good faith.

The legal issues before the FWC encompassed several key aspects. First, the court had to assess whether the agreement contained all the mandated minimum terms and conditions as stipulated by the Fair Work Act. This included ensuring that the agreement provided for minimum wages and conditions, as well as any additional terms that were necessary to ensure the agreement was in line with the legislative framework. Additionally, the FWC needed to determine whether the agreement was made in good faith, a requirement that is essential for the approval of any enterprise agreement under the Act. The court also had to consider whether the agreement was made without any coercion or undue influence, ensuring that the process was fair and transparent.

The FWC carefully reviewed the proposed agreement and found that it contained all the required minimum terms and conditions as per the Fair Work Act. The FWC also concluded that the agreement was made in good faith and without any coercion or undue influence. The union had demonstrated that the process leading to the agreement was fair and transparent. Consequently, the FWC approved the agreement, finding that it met all the necessary statutory requirements. The union's application for approval was therefore granted, and the enterprise agreement was formally approved.

The FWC's decision concluded with an order approving the Australasian Stone Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Tilelayers Enterprise Agreement 2020-2023. The approval was based on the finding that the agreement met all the statutory requirements under the Fair Work Act, including the inclusion of all necessary minimum terms and conditions, and the adherence to the good faith requirement. The agreement was thus deemed to be valid and enforceable, providing a framework for the employment conditions of the parties involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established