Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 2823

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/3321)

LSC FABRICATIONS PTY LTD AS TRUSTEE FOR THE LSC FABRICATIONS TRUST T/AS LSC FABRICATIONS AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS ARCHITECTURAL FEATURES AND FITTINGS ENTERPRISE AGREEMENT 2020-2023

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

Application for approval of the LSC FABRICATIONS PTY LTD AS TRUSTEE FOR THE LSC FABRICATIONS TRUST T/As LSC FABRICATIONS and the CFMEU (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the LSC FABRICATIONS PTY LTD AS TRUSTEE FOR THE LSC FABRICATIONS TRUST T/As LSC FABRICATIONS and the CFMEU (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings 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

In the Fair Work Commission, LSC Fabrications Pty Ltd, as trustee for the LSC Fabrications Trust, trading as LSC Fabrications, sought approval of a subcontractor agreement with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute centred on whether the proposed agreement met the requirements for approval under the Fair Work Act 2009. The Fair Work Commission was required to determine if the agreement was in the interests of fairness and efficiency in the workplace, and whether it provided adequate protections and entitlements for employees.

The legal issues before the Commission involved assessing whether the proposed agreement provided for fair terms and conditions, including pay rates, leave entitlements, and other employment benefits, and whether it complied with the relevant provisions of the Fair Work Act. The Commission also needed to consider whether the agreement was negotiated in good faith and whether it met the standard of being in the best interests of the employees covered by the agreement.

The Fair Work Commission found that the proposed agreement met the statutory requirements for approval. The Commission was satisfied that the agreement provided fair terms and conditions for employees and complied with the relevant provisions of the Fair Work Act. The Commission also found that the agreement was negotiated in good faith and was in the best interests of the employees. The Commission approved the subcontractor agreement, noting its positive impact on the employees and its alignment with the objectives of the Fair Work Act.

The Commission's decision concluded with the approval of the proposed agreement, which now provides a legally binding framework for the employment of employees under the specified enterprise. This approval ensures that the agreement will be enforced and that the parties will be bound by its terms.

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