Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 1747

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/1523)

BULL GROUP AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector Enterprise Agreement 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 31 MAY 2022

Application for approval of the BULL GROUP AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the BULL GROUP AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector 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 7 June 2022. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of an enterprise agreement between Bull Group Australia Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector Enterprise Agreement 2020-2023. The union and the employer sought the Commission's approval under the Fair Work Act 2009, aiming to establish the terms and conditions of employment for riggers and steel erectors within the construction industry. The legal issues at the heart of the case revolved around whether the proposed agreement met the requirements of the Act, particularly concerning its fairness and compliance with the safety net provisions.

The Commission meticulously examined the proposed agreement to determine if it adhered to the legislative standards. It considered whether the agreement provided for the prescribed minimum entitlements, including rates of pay, leave provisions, and other benefits. Furthermore, the Commission assessed if the agreement was free from any unfair content and if it appropriately balanced the interests of both the employer and the employees. The central issue was whether the agreement, once approved, would operate in a manner that would not be detrimental to the employees or the broader industrial relations system.

In its decision, the Fair Work Commission found that the proposed agreement was compliant with the statutory requirements and was fair and reasonable. The Commission acknowledged the need to provide fair terms and conditions to workers in the construction industry while also ensuring the viability of businesses. The agreement was deemed to provide for the prescribed minimum entitlements and was not found to contain any unfair content. Therefore, the Commission approved the enterprise agreement, recognising its balanced approach and its potential to enhance industrial relations within the specified industry sector.

The Fair Work Commission's decision concluded with the formal approval of the Bull Group Australia Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector Enterprise Agreement 2020-2023. The agreement was approved and registered, effective from the date of the decision, and was to operate in accordance with the Fair Work Act 2009. The Commission's ruling affirmed the importance of fair and reasonable enterprise agreements in maintaining a stable and productive industrial relations environment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established