Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 2917

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/3402)

NOKIN PTY LTD T/As NOKIN 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, 25 AUGUST 2022

Application for approval of the NOKIN PTY LTD T/As NOKIN 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 NOKIN PTY LTD T/As NOKIN 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 1 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 case involved an application for the approval of a proposed enterprise agreement between NOKIN PTY LTD, trading as NOKIN PTY LTD, and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023. The application was heard by the Fair Work Commission, which has jurisdiction to approve enterprise agreements under the Fair Work Act 2009. The dispute arose because the union and the employer were unable to reach an agreement on the terms of the enterprise agreement, necessitating intervention by the Commission.

The central legal issues before the Commission were whether the proposed agreement complied with the statutory requirements of the Fair Work Act, including provisions related to good faith bargaining, the coverage of the agreement, and whether the agreement contained terms that were contrary to public policy or were otherwise unfair. The Commission had to determine if the proposed agreement met the criteria for approval, including whether it had been negotiated in good faith, and whether it provided for the prescribed minimum terms and conditions of employment.

The Commission found that the proposed agreement had been negotiated in good faith and met the statutory requirements for approval. It considered that the agreement contained appropriate provisions for minimum wages, conditions, and other terms of employment. The Commission also found that the agreement did not contain any terms that were contrary to public policy or otherwise unfair. Therefore, the Commission approved the proposed enterprise agreement, confirming its compliance with the relevant statutory provisions.

The Fair Work Commission approved the NOKIN PTY LTD T/As NOKIN PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023, effective from the date of the Commission's decision. The approval ensures that the terms and conditions of employment set out in the agreement will apply to the relevant employees during the specified period.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established