Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 1886

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/1669)

CHIEF GROUP SOLUTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023

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

Application for approval of the CHIEF GROUP SOLUTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the CHIEF GROUP SOLUTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage 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

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) applied for approval of a new enterprise agreement between Chief Group Solutions Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The application was made under section 232 of the Fair Work Act 2009. The CFMEU sought to have the agreement approved as a low-paid enterprise agreement, to be covered by the safety net provisions of the Fair Work Act, and also to be registered as an enterprise agreement in the Fair Work Commission's register.

The key legal issue was whether the agreement met the requirements of section 231 of the Fair Work Act. Specifically, the Commission needed to determine if the agreement was a "low-paid enterprise agreement" and therefore eligible for safety net provisions. The CFMEU argued that the agreement was a low-paid enterprise agreement, and as such, it should be approved and registered. The CFMEU also argued that the agreement was consistent with the safety net provisions of the Fair Work Act, including the requirement that the agreement's minimum rates of pay must not be less than the relevant award safety net rates.

The Commission found that the agreement was a low-paid enterprise agreement and that it complied with the safety net provisions of the Fair Work Act. The Commission noted that the agreement provided for minimum rates of pay that were not less than the relevant award safety net rates. The Commission also found that the agreement contained provisions that were consistent with the objectives of the Fair Work Act, including the protection of vulnerable employees and the promotion of constructive and cooperative workplace relations. The Commission approved the agreement and registered it as an enterprise agreement.

The final orders of the Commission were that the agreement be approved as a low-paid enterprise agreement and that it be registered as an enterprise agreement in the Fair Work Commission's register. The agreement was to take effect from 1 April 2020 and would remain in force until 31 March 2023. The Commission also directed that the agreement be published on the Fair Work Commission's website.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established