Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 1979

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/1792)

WEB CONSTRUCTIONS PTY LTD AS TRUSTEE FOR WEB CONSTRUCTIONS FAMILY TRUST AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CAULKING AND SEALING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER MATHESON	SYDNEY, 17 JUNE 2022

Application for approval of the WEB CONSTRUCTIONS PTY LTD AS TRUSTEE FOR WEB CONSTRUCTIONS FAMILY TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the WEB CONSTRUCTIONS PTY LTD AS TRUSTEE FOR WEB CONSTRUCTIONS FAMILY TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing 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 24 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

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union sought approval for the Web Constructions Pty Ltd as Trustee for Web Constructions Family Trust and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023. The application was made by the Union, which represented the employees, and opposed by the employer. The dispute centred on the terms and conditions of employment outlined in the proposed enterprise agreement, including wages, hours of work, and other employment-related matters.

The legal issues before the Commission included whether the proposed agreement complied with the relevant provisions of the Fair Work Act 2009 and whether it met the statutory requirement of being in the best interests of the employees. The Commission needed to consider if the agreement provided fair and reasonable terms for both the employees and the employer, and if it contained any provisions that might be considered unfair or unreasonable. The fairness and reasonableness of the agreement was assessed against the Fair Work (Registered Organisations) Act 2009 and the Fair Work Regulations 2009.

The Commission found that the proposed agreement complied with the relevant statutory requirements and was fair and reasonable. The terms and conditions of employment in the agreement were considered to be equitable for both parties. The Commission was satisfied that the agreement met the criteria for approval under the Fair Work Act 2009, and therefore, approved the proposed enterprise agreement. The decision was based on the evidence presented and the application of the relevant legislative framework.

The final order of the Commission was that the Web Constructions Pty Ltd as Trustee for Web Constructions Family Trust and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023 was approved and registered under the Fair Work Act 2009. The agreement was to be in effect from the date of the decision and would govern the employment conditions of the employees for the duration of the agreement.

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