Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 2116

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/1956)

ZAGRENIC PTY LTD T/As BRICKALL and the CFMEU (Victorian Construction and General Division) Subcontractors Bricklaying Enterprise Agreement 2020-2023

Building, metal and civil construction industries
COMMISSIONER MATHESON	SYDNEY, 28 JUNE 2022

Application for approval of the ZAGRENIC PTY LTD T/As BRICKALL and the CFMEU (Victorian Construction and General Division) Subcontractors Bricklaying Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the ZAGRENIC PTY LTD T/As BRICKALL and the CFMEU (Victorian Construction and General Division) Subcontractors Bricklaying 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 5 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 application before the Fair Work Commission was for the approval of the Subcontractors Bricklaying Enterprise Agreement 2020-2023 between ZAGRENIC PTY LTD trading as BRICKALL and the CFMEU (Victorian Construction and General Division). The agreement sought to regulate the terms and conditions of employment for subcontractors in the bricklaying industry within Victoria. The dispute centred on the scope of the agreement and whether it complied with the requirements of the Fair Work Act 2009.

The central legal issue before the Commission was whether the agreement was an appropriate and suitable enterprise agreement under the Act. Specifically, the Commission had to consider whether the agreement met the criteria set out in section 230 of the Act, which mandates that an enterprise agreement must be "fair and appropriate" and "not have the effect of disadvantaging employees". The Commission also needed to determine if the agreement appropriately covered the relevant employees and whether the bargaining process was conducted in good faith and in compliance with the statutory requirements.

The Commission examined the submissions and evidence provided by both parties, assessing the fairness and appropriateness of the agreement's terms. It concluded that the agreement met the necessary criteria and was fair and appropriate for the employees it covered. The Commission noted that the agreement provided for fair wages and conditions, and it did not disadvantage the employees. The Commission was satisfied that the agreement was made in good faith and complied with the procedural requirements of the Act.

The Commission approved the Subcontractors Bricklaying Enterprise Agreement 2020-2023, recognising it as a valid and enforceable agreement between the parties. This approval ensures that the terms and conditions of employment for subcontractors in the bricklaying industry within Victoria are governed by this agreement, providing certainty and stability for both employers and employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established