Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 2732

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/3241)

FABFIX PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Cladding Installation Enterprise Agreement 2020-2023

Building, metal and civil construction industries
COMMISSIONER MATHESON	SYDNEY, 15 AUGUST 2022

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

An application has been made for approval of an enterprise agreement known as the FABFIX PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Cladding Installation 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 22 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 FABFIX PTY LTD and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Cladding Installation Enterprise Agreement 2020-2023. The matter was heard in the Fair Work Commission, with the Union and the company seeking approval of the proposed agreement under the Fair Work Act 2009.

The primary legal issue for the Commission was to determine whether the proposed enterprise agreement met the requirements of the Fair Work Act, including compliance with the relevant provisions regarding the content and form of the agreement. This involved an examination of whether the agreement appropriately covered all necessary terms and conditions of employment, and whether it adhered to the prescribed processes for approval. Additionally, the Commission had to consider the fairness and reasonableness of the agreement's terms, including wage rates, working conditions, and dispute resolution mechanisms.

In reaching its decision, the Commission examined the proposed agreement in detail, assessing it against the criteria set out in the Fair Work Act. The Commission found that the agreement contained all the necessary terms and conditions of employment, and that it was properly formed and negotiated. The Commission also noted that the agreement provided for a fair and reasonable outcome for both the employees and the employer, taking into account the specific circumstances of the cladding installation industry. The Commission was satisfied that the agreement met all the legal requirements for approval and accordingly approved the proposed agreement.

The final orders of the Commission were that the FABFIX PTY LTD and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Cladding Installation Enterprise Agreement 2020-2023 be approved in accordance with the Fair Work Act 2009. The agreement was to take effect from the date of the Commission's decision and was to remain in force until such time as it was terminated or replaced by a new agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established