Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 2246

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/2220)

LIVSON CONSTRUCTION SERVICES PTY LTD AS TRUSTEE FOR N R SPITERI FAMILY TRUST T/AS LIVSON CONSTRUCTION SERVICES PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS ARCHITECTURAL FEATURES AND FITTINGS ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 12 JULY 2022

Application for approval of the LIVSON CONSTRUCTION SERVICES PTY LTD AS TRUSTEE FOR N R SPITERI FAMILY TRUST T/As LIVSON CONSTRUCTION SERVICES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the LIVSON CONSTRUCTION SERVICES PTY LTD AS TRUSTEE FOR N R SPITERI FAMILY TRUST T/As LIVSON CONSTRUCTION SERVICES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings 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 19 July 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 matter before the Fair Work Commission involved an application for the approval of the CFMEU (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023, with LIVSON Construction Services Pty Ltd as trustee for N R Spiteri Family Trust trading as LIVSON Construction Services Pty Ltd as one of the parties. The application was brought under the Fair Work Act 2009, with the Commission exercising its powers to approve the agreement despite its potential adverse effect on certain employees.

The legal issues before the Commission involved whether the agreement could be approved under section 234 of the Fair Work Act despite its adverse effects, and whether the benefits of the agreement to the broader workforce outweighed the adverse effects on some employees. The Commission considered whether the agreement met the criteria for approval under section 234, including whether the agreement was in the public interest and whether it provided for the fair and efficient resolution of workplace issues.

The Commission found that the agreement met the criteria for approval. The Commission noted the significant benefits to the broader workforce, including improved pay and conditions, and the potential for increased productivity and efficiency. The Commission also found that the adverse effects on some employees were outweighed by the benefits to the broader workforce, and that the agreement provided for the fair and efficient resolution of workplace issues. The Commission approved the agreement, noting that it was in the public interest and provided for the fair and efficient resolution of workplace issues.

The Commission made an order approving the CFMEU (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023, with LIVSON Construction Services Pty Ltd as trustee for N R Spiteri Family Trust trading as LIVSON Construction Services Pty Ltd as one of the parties. The order was made under section 234 of the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established