Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 2824

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/3331)

FINE PLASTERING AND RESTORATIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Remedial Concrete and Access Flooring Enterprise Agreement 2020-2023

Building, metal and civil construction industries
COMMISSIONER MATHESON	SYDNEY, 19 AUGUST 2022

Application for approval of the FINE PLASTERING AND RESTORATIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Remedial Concrete and Access Flooring Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the FINE PLASTERING AND RESTORATIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Remedial Concrete and Access Flooring 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 26 August 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 Fair Work Commission heard an application for the approval of an enterprise agreement between FINE PLASTERING AND RESTORATIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Remedial Concrete and Access Flooring Enterprise Agreement 2020-2023. The agreement was submitted by the union and the employer, who are the parties to the dispute. The application required the consideration of whether the agreement met the criteria for approval under the Fair Work Act 2009.

The primary legal issue the Commission needed to decide was whether the agreement complied with the requirements for enterprise agreements under the Fair Work Act 2009. This involved assessing whether the agreement contained the necessary terms, whether it was made in good faith, and whether it met the "better off overall test." The Commission also needed to consider whether the agreement had been appropriately bargained and whether it contained the correct certification and procedural requirements.

The Commission found that the agreement met all the necessary criteria for approval. The agreement contained all the required terms, was made in good faith, and met the "better off overall test." The Commission was satisfied that the agreement had been appropriately bargained and that the procedural requirements were met. The Commission noted that the agreement was certified by the union and that the employer had not raised any procedural objections. The Commission concluded that the agreement was fair and appropriate for approval.

Accordingly, the Commission approved the FINE PLASTERING AND RESTORATIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Remedial Concrete and Access Flooring Enterprise Agreement 2020-2023. The agreement will now be registered and will apply to the employees covered by the agreement. The parties are bound by the terms of the agreement, and any disputes arising from the agreement will be subject to the dispute resolution processes outlined in the agreement.

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