Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 2784

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/3291)

BRICKLINK PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS BRICKLAYING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER MATHESON	SYDNEY, 17 AUGUST 2022

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

An application has been made for approval of an enterprise agreement known as the BRICKLINK PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Bricklaying 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 24 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 case involved an application for the approval of the Bricklaying Enterprise Agreement 2020-2023 between Bricklink Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The dispute arose in the Fair Work Commission of Australia, which was tasked with determining whether the proposed agreement met the necessary legal standards for approval.

The primary legal issue before the court was whether the agreement complied with the Fair Work Act 2009, specifically whether it adhered to the requirements for genuine bargaining, met the fair and portable terms, and was in the best interests of the employees covered by the agreement. The court also had to consider if the agreement was free from any prohibited content and whether it was consistent with the principles of the Fair Work Act.

The Fair Work Commission assessed the agreement based on the evidence and submissions provided by the parties. The Commission found that the agreement was the product of genuine bargaining, contained fair and portable terms, and was in the best interests of the employees. It was also determined that the agreement was free from prohibited content and was consistent with the principles of the Fair Work Act. Consequently, the Commission approved the Bricklaying Enterprise Agreement 2020-2023.

The Fair Work Commission approved the agreement and directed that it be registered and notified in accordance with the Fair Work Act. This decision was based on the evidence and submissions presented, which demonstrated that the agreement met the necessary legal standards for approval. The approval ensures that the agreement will be legally binding and enforceable between 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