Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 2585

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/3073)

INDEPENDENT CONSTRUCTION AND FABRICATION PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS RIGGER/STEEL ERECTOR ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 3 AUGUST 2022

Application for approval of the INDEPENDENT CONSTRUCTION AND FABRICATION PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the INDEPENDENT CONSTRUCTION AND FABRICATION PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector 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 10 August 2022. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

[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 an enterprise agreement between Independent Construction and Fabrication Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector Enterprise Agreement 2020-2023. The Fair Work Commission (FWC) was tasked with determining whether the agreement met the necessary requirements under the Fair Work Act 2009 (Cth).

The legal issues before the FWC centred around whether the agreement complied with the provisions of the Fair Work Act, particularly the requirement for the agreement to be in writing, to be free from coercion or undue influence, and to provide for a minimum rate of pay and conditions. The FWC also needed to consider whether the agreement was in the best interests of the employees and whether it provided for a fair and reasonable outcome for all parties involved.

In its decision, the FWC examined the evidence and submissions provided by the parties. The FWC found that the agreement was in writing and free from any evidence of coercion or undue influence. The FWC also considered the minimum rates of pay and conditions set out in the agreement, and found that they were fair and reasonable. The FWC further noted that the agreement provided for a number of benefits for employees, including increased pay rates, improved leave entitlements, and better conditions for working in hazardous environments. The FWC concluded that the agreement was in the best interests of the employees and all parties involved, and approved the agreement.

The FWC's final orders approved the Independent Construction and Fabrication Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector Enterprise Agreement 2020-2023. The agreement will now be registered and will apply to the employees covered by the agreement, providing them with the improved pay and conditions set out in the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established