Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 1879

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/1674)

ONE BUILD GROUP HOLDING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS PLASTERING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER MATHESON	SYDNEY, 9 JUNE 2022

Application for approval of the ONE BUILD GROUP HOLDING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Plastering Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the ONE BUILD GROUP HOLDING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Plastering 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 16 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 applicants, ONE BUILD GROUP HOLDING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Plastering Enterprise Agreement 2020-2023, sought approval from the Fair Work Commission. The dispute centred on the terms and conditions of the enterprise agreement between the two parties, and whether it met the requirements set out in the Fair Work Act 2009. The matter was heard in the Fair Work Commission, a federal specialist tribunal with jurisdiction over workplace relations and industrial matters.

The primary legal issues for the Commission to decide were whether the agreement was made in accordance with the relevant provisions of the Act, and whether it provided for the terms and conditions of employment in a fair and reasonable manner. Specifically, the Commission needed to consider whether the agreement met the requirements for 'bargaining representativeness', 'good faith', and 'avoidance of industrial action'. Additionally, the Commission was required to assess whether the agreement was in the 'best interests' of the employees covered by it.

In delivering its decision, the Commission examined the process by which the agreement was negotiated, the extent to which the parties had acted in good faith, and the substantive terms and conditions of the agreement. The Commission found that the agreement had been negotiated in good faith and that it met the requirements for 'bargaining representativeness'. The Commission also found that the agreement was in the best interests of the employees, as it provided for fair and reasonable terms and conditions of employment, including provisions for pay rates, working hours, and leave entitlements. The Commission ultimately approved the agreement, finding that it complied with the requirements of the Act.

In light of its findings, the Commission made orders approving the enterprise agreement between the applicants. The agreement was to be registered with the Fair Work Commission and would be in force from the date of the decision until such time as it was terminated or replaced by a new agreement. The orders also provided for the agreement to be binding on the parties and their employees, and for the Commission to have ongoing jurisdiction to deal with any disputes that might arise in relation to the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established