Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 2201

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

(AG2022/1948)

BECCA'S FLOORING SERVICES 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 BECCA'S FLOORING SERVICES 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 BECCA'S FLOORING SERVICES 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 case before the Fair Work Commission involved an application for the approval of a new enterprise agreement between Becca's Flooring Services Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) (Victorian Construction and General Division) Subcontractors Remedial Concrete and Access Flooring Enterprise Agreement 2020-2023. The primary issue was whether the agreement met the statutory requirements for approval under the Fair Work Act 2009, specifically focusing on whether it provided for fair and reasonable terms and conditions.

The court examined several legal issues, including whether the agreement contained terms that adequately balanced the interests of both the employer and the employees, and whether it complied with the good faith bargaining requirement. It also considered whether the agreement adequately addressed the rights of employees, particularly those who were directly affected by the terms of the agreement. The court had to determine if the agreement met the criteria for approval, such as ensuring it provided for fair and reasonable terms and conditions, and if it was genuinely negotiated between the parties.

The Fair Work Commission found that the agreement did meet the statutory requirements for approval. The court considered that the agreement provided for fair and reasonable terms and conditions, and that it was genuinely negotiated between the parties. The agreement included provisions that balanced the interests of both the employer and the employees, and it complied with the good faith bargaining requirement. The court was satisfied that the agreement adequately addressed the rights of employees and met the criteria for approval as set out in the Fair Work Act 2009.

As a result, the Fair Work Commission approved the Becca's Flooring Services Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Remedial Concrete and Access Flooring Enterprise Agreement 2020-2023. The agreement was deemed to meet all necessary legal requirements and was accepted as a valid enterprise agreement under the Fair Work Act 2009.

Construction, Forestry, Maritime, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established