Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 2652

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/3205)

SPARTAN REMEDIAL SERVICES CIVIL 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, 11 AUGUST 2022

Application for approval of the SPARTAN REMEDIAL SERVICES CIVIL 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 SPARTAN REMEDIAL SERVICES CIVIL 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 18 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 matter before the Fair Work Commission involved an application by SPARTAN REMEDIAL SERVICES CIVIL PRIVATE LIMITED and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) for the approval of a proposed enterprise agreement. The agreement in question was the Subcontractors Remedial Concrete and Access Flooring Enterprise Agreement 2020-2023. The dispute centered on whether the terms of the agreement complied with the Fair Work Act 2009 and other relevant legislation. The Commission was tasked with determining whether the proposed agreement was in the best interests of the employees and met the requirements for formal approval.

The primary legal issue before the Commission was whether the proposed enterprise agreement contained provisions that were contrary to the principles of the Fair Work Act or otherwise failed to meet the statutory criteria for approval. Specifically, the Commission had to assess whether the agreement was likely to lead to better pay and conditions for the employees, whether it adequately protected employees' rights, and if it adhered to the procedural requirements for formal approval. Furthermore, the Commission considered whether the agreement contained any terms that were inconsistent with the statutory minimum standards set out in the National Employment Standards.

The Commission conducted a detailed analysis of the proposed agreement, examining each clause to determine its compliance with the Fair Work Act. The Commission found that the agreement contained provisions that were consistent with the statutory minimum standards and did not include any terms that were contrary to the principles of the Act. The Commission also determined that the agreement was likely to lead to better pay and conditions for the employees and adequately protected their rights. Consequently, the Commission approved the Subcontractors Remedial Concrete and Access Flooring Enterprise Agreement 2020-2023, finding it to be in the best interests of the employees and compliant with all relevant legal requirements. The final orders included the formal approval of the agreement, effective from the date of the Commission's decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established