Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 2041

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/1865)

BAUER FOUNDATIONS AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Piling Enterprise Agreement 2020-2023

Building, metal and civil construction industries
COMMISSIONER MATHESON	SYDNEY, 22 JUNE 2022

Application for approval of the BAUER FOUNDATIONS AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Piling Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the BAUER FOUNDATIONS AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Piling 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 29 June 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 matter involved the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Bauer Foundations Australia Pty Ltd. The issue before the court was the application for the approval of the BAUER FOUNDATIONS AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Piling Enterprise Agreement 2020-2023. The Federal Court of Australia was tasked with assessing the agreement to ensure it complied with the requirements of the Fair Work Act 2009.

The central legal issue was whether the enterprise agreement met the necessary criteria under the Fair Work Act, specifically whether it was a genuine enterprise agreement, contained only matters that could be the subject of an enterprise agreement, and did not include any provisions that were outside the scope of what could be included in such an agreement. The court needed to determine if the agreement was fair and balanced, taking into account the rights, obligations, and interests of the parties, and whether it was free from any improper conduct or coercion.

The court examined the evidence and submissions from both parties, considering the nature of the agreement and its provisions. It found that the agreement was a genuine enterprise agreement, that it contained only matters that could be the subject of such an agreement, and that it did not include any provisions outside the scope permitted by the Fair Work Act. The court was satisfied that the agreement was fair and balanced, and that it had been made without any improper conduct or coercion. Consequently, the court approved the enterprise agreement.

The court's final order was the approval of the BAUER FOUNDATIONS AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Piling Enterprise Agreement 2020-2023, effective from the date of the court's decision. The agreement was to be registered with the Fair Work Commission and would govern the employment conditions of the parties for the period specified.

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