Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 2187

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/1943)

BE FLOORED 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, 1 JULY 2022

Application for approval of the BE FLOORED 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 BE FLOORED 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 8 July 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 parties involved in this case were the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and BE FLOORED PTY. LTD. The dispute centred on the approval of a proposed enterprise agreement for the period 2020-2023, specifically concerning the subcontractors within the flooring industry. The matter was brought before the Fair Work Commission, an Australian federal statutory court with jurisdiction over employment and workplace relations matters.

The legal issues that the Commission had to address involved determining whether the proposed enterprise agreement was fair and reasonable, and if it complied with the requirements of the Fair Work Act 2009. This included assessing whether the agreement provided for appropriate terms and conditions, taking into consideration the needs and interests of both the employers and the employees within the flooring industry. The Commission also needed to determine whether the agreement would result in the parties being better off, worse off, or no worse off than if the agreement had not been made.

After reviewing the evidence and submissions from both parties, the Fair Work Commission determined that the proposed enterprise agreement was fair and reasonable. The Commission found that the agreement provided for appropriate terms and conditions, taking into account the needs and interests of both employers and employees within the flooring industry. Furthermore, the Commission was satisfied that the agreement would result in the parties being no worse off than if the agreement had not been made. As a result, the Commission approved the proposed enterprise agreement between BE FLOORED PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Remedial Concrete and Access Flooring Enterprise Agreement 2020-2023.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established