Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 2740

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/3285)

ALPHA-FORM CONSTRUCTIONS (VIC) PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS FORMWORK ENTERPRISE AGREEMENT 2020-2023

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

Application for approval of the ALPHA-FORM CONSTRUCTIONS (VIC) PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the ALPHA-FORM CONSTRUCTIONS (VIC) PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork 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

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought approval of a subcontractor enterprise agreement between Alpha-Form Constructions (Vic) Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023. The agreement was for workers who are employees of subcontractors engaged by Alpha-Form to provide formwork services to Alpha-Form. The dispute was between the union and the employer, with the union representing the employees.

The legal issues before the Commission were whether the agreement was a simple, genuine and effective enterprise agreement, and whether the union had conducted a proper ballot of the employees. The union argued that the agreement was fair and reasonable, and that it had followed proper procedures in conducting the ballot. The employer argued that the agreement was not a genuine enterprise agreement, and that the union had not properly conducted the ballot.

The Commission found that the agreement was a genuine enterprise agreement, as it had been negotiated in good faith and was fair and reasonable. The Commission also found that the union had properly conducted the ballot of the employees, as it had followed the procedures set out in the agreement. The Commission approved the agreement, subject to certain modifications to ensure that it complied with the Fair Work Act. The employer and the union were ordered to take all necessary steps to give effect to the agreement.

The final orders of the Commission included the approval of the agreement, subject to modifications, and the requirement that the employer and the union take all necessary steps to give effect to the agreement. The Commission also ordered that the employer and the union provide a copy of the agreement to the Commission within 14 days of the decision. The Commission further ordered that the employer and the union provide a copy of the agreement to each employee affected by the agreement within 14 days of the decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established