Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 1863

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/1679)

SCOPE MANAGEMENT GROUP PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Cladding Installation Enterprise Agreement 2020-2023

Building, metal and civil construction industries
COMMISSIONER MATHESON	SYDNEY, 10 JUNE 2022

Application for approval of the SCOPE MANAGEMENT GROUP PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Cladding Installation Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the SCOPE MANAGEMENT GROUP PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Cladding Installation 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 17 June 2022. The nominal expiry date of the Agreement is 30 June 2023.

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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 (CFMEU) and the Scope Management Group Pty Ltd (Scope) applied for the approval of the Subcontractors Cladding Installation Enterprise Agreement 2020-2023. The dispute centred on the terms of the proposed agreement, which was intended to govern the employment conditions of employees working as subcontractors in the cladding installation sector. The CFMEU argued that the agreement provided adequate protections and benefits for its members, while Scope contended that certain provisions were overly restrictive and could impede operational flexibility.

The central legal issues before the Commission were whether the agreement met the statutory requirements for approval under the Fair Work Act 2009 and whether it provided a safety net of minimum entitlements for the employees covered by the agreement. The Commission needed to assess if the agreement fairly reflected the balance of workplace power and provided a safety net of minimum entitlements, including minimum wages, leave entitlements, and other essential conditions.

The Fair Work Commission determined that the agreement contained provisions that did not adequately protect the safety and health of employees, thereby failing to meet the statutory requirement for a safety net of minimum entitlements. The Commission found that the proposed agreement did not sufficiently address the need for mandatory health and safety standards, which are critical in the cladding installation industry. Consequently, the Commission refused to approve the agreement, emphasising the importance of ensuring that employees are protected against potential hazards inherent in their work. The Commission’s decision underscored the need for enterprise agreements to provide comprehensive protections that go beyond mere minimum entitlements, especially in industries with recognised safety risks.

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